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TRIAL 


OP  THE 


Rev.  CHARLES  EDWARD  CHENEY, 

RECTOR  OF  CHRIST  CHURCH,  CHICAGO, 


BEFORE  AN 


ecclesiastical  court, 
Convened  by  the  Bishop  of  Illinois, 

TOGETHER  WITH  THE  PROCEEDINGS  IN  THE 

SUPERIOR  COURT  OF  CHICAGO, 

AND    THE 

OPIIIOI  OF  HON.  JOHN  A.  JAMESON, 

SUSTAINING  THE  INJUNCTION  GRANTED  AGAINST 
THE  ECCLESIASTICAL  TRIBUNAL. 


CHICAGO,    ILL.: 
18  69.     " 


DEACCESSIONED  BY 
CHFCAGO  HISTORICAL  SOCIETY 

PRINTED  C"^i  •  F.CTIONS 


ADVERTISEMENT. 


The  following  is  a  synopsis  of  the  proceedings  in  the  case  of  Rev.  Charles  E. 
Cheney,  before  the  Ecclesiastical  tribunal  and  in  the  Superior  Court  of  Chicago. 

The  pleadings  in  the  Ecclesiastical  Court  are  given  in  full,  as  also  the  original 
bill  of  complaint  filed  on  behalf  of  Mr.  Cheney,  the  answer  thereto,  and  the 
affidavit  of  Bishop  Whitehouse  filed  with  the  answer,  and  the  opinion  of  Judge 
Jameson,  delivered  on  the  preliminary  motion  to  dissolve  the  injunction.   . 

The  record  was  so  voluminous  that  it  was  found  impossible  to  give  it  entire. 

The  case  in  the  civil  court,  it  is  understood,  will  be  carried  to  the  Supreme  Court, 
and  the  taking  of  the  evidence  therein  has  not  up  to  this  date  been  completed. 

Chicago,  September  11th,  1869. 


T  R  I  ^  L 


Rev.  Charles  Edward  Cheney, 


Chapel  of  the  Cathedral  op  Saints  Peter  and  Favl,  ) 

Chicago,  July  21,  1369,  10  o'clock  A.  M.  f 

Present  :  Rev.  Samuel  Chase,  D.D.,  of  Jubilee  College,  Presiding. 

Rev.  Henry  N.  Pierce,  D.D.,  of  St.  Paul's  Church,  Springfield. 
Rev.  John  Benson,  of  St.  John's  Church,  Peoria. 
Rev.  Thomas  N.  Benedict,  St.  Luke's  Church,  'Wyoming. 
Rev.  A.  W.  Sntder,  of  Calvary  Church,  Chicago. 

Rev.  George  F.  Cushman,  D.D.,  ) 

Rev.  Richard  F.  Sweet,  B.D.,      [-  Prescntors. 

Hon.  Lucius  B.  Otis,  J 

Hon.  L.  B.  Otis, 

Acting  as  Proctor  for  the  Prosecution. 

The  Respondent,  Rev.  Charles  E.Cheney,  accompanied  by  Meville  VV. 
Fuller,  George  W.  Thompson  and  M.  Byron  Rich,  Esquires,  his 
Proctors  and  Advocates. 

The  Chapel  was  filled  with  a  large  audience,  and  the  following  clergy  were  present  as 
spectators  : 

The  Bishop,  Riirht  Rev.  H.  J.  Whitehouse,  D.D.  ;  Rev.  Dr.  Street,  Rector  of  St. 
Alban's  Church,  Ottawa,  Canada  West;  Rev.  Wm.  J.  Magill,  Rector  of  St.  Mark's 
Church,  Mvstic  Bridire,  Conn.;  Rev.  Frank  M.  Gkegg,  Rector  of  St.  Paul's  (urch, 
Laporte,  Ind.  ;  Rev.  Dr.  Hume,  St.  Peter's  Cliurch,  Redwood,  Cal.  ;  Rev.  Dudley 
Chase,  California,  Chaplain  U.  S.  Army,  and  pon  of  the  late  Bi-shop  <if  Illinois  ;  Rev. 
Dean  Cob,  Cairo,  111.  ;  Rev.  Dr.  Judd,  Allegan,  Mich.  ;  Rev.  Mr.  Thayer,  Louisville, 
Kv.  ;  Rev.  O.  11.  Woodfokd,  Plymouth.  Wis.  ;  Rev.  Dr.  Rylance  St.  James'  Church, 
Cliieaco  ;  Rev.  Dr.  Cooper,  Belvidere,  111.  ;  Rev.  Charles  P.  Dorset,  8t.  Ste|)lu'n's 
Church,  Chicago  ;  Rev.  Mr.  McNermera,  LaCrosse.  Wis. ;  RfV.  Mr.  Freeman,  Lyons, 
Iowa  ;  Rev.  Mr.  Brooks,  Kenosha,  Wis. ;  Rev.  John  W.  Birckmore,  Flint,  Mich.  ; 
Rev.  J.  W.  OsBORN,  Bement,  111. ;  Rev.  John  Harris  Knowles,  Canon  Catlu-dral, 
Chicago;  Rev.  George  J.  Magill,  Canon  Cathedral,  Chicago;  Rev.  Dr.  Jackson, 
Church  of  our  Saviour,  Chicago  ;  Rev.  Mr.  Wilkinson,  St.  James'  Church,  Milwaukee  ; 
Rev.  Mr.  Wallace,  Chaplain  United  States  Navy. 

ministers  of  other  denominations. 

Rev.  Dr.  Hatfield,  Centenarv  M.  E.  Church,  Chicago  ;  Rev.  Dr.  Taylor,  Union  Park 
Baptist  Church,  Chicago  ;  Rev.  Mr.  Wilkins,  Old  Sehool  Presbyterian,  Waukegaa,  111. 


4  TRIAL    OF    REV.    CHARLES   EDWARD    CHENEY. 

The  Pkesidixg  Officer— This  is  an  Ecclesiastical  Court,  assembled  under  Canon  20  of 
the  Diocese  of  Illinois,  for  the  trial  of  the  Rev.  Charles  E.  Cheney,  under  sundry  charj,'e8 
made  a^^ainst  him  in  the  presentment.  I  may  remark,  in  this  connection,  and  at  this 
time,  that  it  is  usual  that  such  proceedings  should  be  opened  by  prayer,  but  for  the 
present  time  the  usual  prayers  of  the  Cathedral  will  be  accepted  instead,  and  which  will 
take  place  on  to-day,  as  well  as  hereafter,  at  9  o'clock  A.  M.,  and  at  2  P.  M. 

Dr.  Chase  then  designated  the  area  in  front  of  the  Court  as  the  place  prepared  for 
spectators,  and  requested  them  to  enter  by  the  front  door  of  the  Cathedral  ;  the  area 
at  the  right  was  for  the  clergy,  and  friends,  and  the  left  for  the  convenience  of  the 
reporters  for  the  press.    He  then  said  : 

In  the  organization  of  a  Court  of  this  kind,  I  suppose  the  first  step  in  the  proceedings 
■will  be  the  appointment  of  a  Secretary.  I  appoint  that  officer  within  the  Court  itself, 
and  name  the  Rev.  Mr.  Snyder,  who  will  act  as  Secretary  of  the  Court. 

Does  the  respondent  design  to  be  represented  by  counsel  ? 

Rev.  Mr.  Cheney— My  Proctors  and  Advocates  are  Hon.  Melville  W.  Fuller, 
George  W.  Thompson  and  M.  Byron  Rich,  Esquires. 

The  Presiding  Officer  said  as  certain  qualifications  were  necessary  for  the  counsel 
named  to  act  in  the  capacity  indicated,  he  would  ask  if  the  several  persons  named 
possessed  these  qualifications,  namely :  Were  they  communicants  in  the  Protestant 
Episcopal  Church,  and  had  they  been  such  for  the  past  two  years  ? 

Mr.  Fuller — That  is  the  fact  as  to  myself,  and  undoubtedly  a*  to  my  associates. 

Mr.  Thompson — We  have  our  credentials  here. 

Judge  Otis — I  appear  in  perhaps  a  double  relation,  as  one  of  the  presentors  and  as 
proctor  for  the  presentors.    I  understand  the  court  to  be  organized  ;  shall  I  proceed? 

The  Presiding  Officer — You  may  proceed,  sir. 

Judge  Otis— May  it  please  the  Reverend  Court — 

Mr.  Fuller— Mr.  President :  If  the  learned  proctor  will  allow  me,  I  had  supposed 
the  course  pursued  in  trials  of  this  character  was  lor  the  presentors  in  the  first  instance 
to  present  the  commission  under  which  they  claim  to  have  acted,  and  the  presentment 
which  they  have  found. 

Judge  Otis — I  was  simply  anticipated  by  Mr.  Fuller.  We  appear  here  in  the  dis- 
charge of  an  official  duty  imposed  upon  us,  in  some  sense,  by  the  whole  church.  In  the 
discharge  of  this  official  duty,  we  shall  try  to  do  it  divested  of  everything  like  passion 
or  prejudice.  We  have  lived  long  enough  as  men,  and  have  had  experience  enough  to 
believe  we  can  appear  here  as  Christian  gentlemen,  and  discharge  our  official  duty 
under  the  laws  of  the  Church.  This  Court  is  organized  under  the  Canons  of  the  Church 
to  enforce  discipline.  Discipline,  or  an  enforcement  of  Ecclesiastical  law,  is  a  necessity 
in  every  Church,  since  no  Church  can  exist  Mithout  it.  I  arise  simply  to  announce 
that  we  shall  try  to  discharge  our  official  duty  divested  of  any  other  consideration 
presented  to  us. 

Judge  Otis  then  read  the  presentment,  which  is  as  follows  : 

Presentment.- Tb  <7ie  Jtiriht  Reverend,  the  BUhop  of  I1Unoi<< : — The  undersigned,  a 
commission  appointed  by  the  Ecclesiastical  authority  of  the  Diocese  of  Illinois,  under 
the  provisions  of  Canon  'XX.  of  said  Diocese,  to  examine  tlv  case  of  the  Rev.  Ch.vrles 
E.  Cheney,  a  Presbyter  of  said  Diocese,  and  Rector  of  Christ  Church,  in  the  city  of 
Chicago,  and  Diocese  of  Illinois,  who  is  under  the  imputation  of  having  been  guilty  of 
offenses  and  misconduct  for  which  he  is  liable  to  be  tried,  having  duly  considered  the 
evidence  produced  hefore  us,  and  examined  tlie  case,  and  there  being  in  our  opinion 
sufficient  grounds  for  presentment,  and,  acting  under  and  according  to  the  provisions  of 
said  Canon,  do  hereby  present  tlie  said  Rev.  Charles  E.  Cheney'  to  you  for  trial,  upon 
the  following  charges  and  specifications  : 

Charge  I.  Violation  of  article  8  of  the  constitution  of  the  Protestant  Episcopal 
Church,  which  provides,  in  substance,  tliat  a  Book  of  Common  Prayer,  administration 
of  the  Sacraments,  and  other  rites  and  ceremonies  of  the  Church,  when  establisiied  by 
the  General  Convention,  shall  be  used  in  the  Protestant  Episcopal  Church,  in  those 
Dioceses  which  shall  have  adopted  said  constitution.    No  alteration  shall  be  made  in 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.         O 

the  Book  of  Common  Prayer,  or  otlici- offices  of  the  Cluii-ch,  unlesp  the  same  shall  be 
proposed  in  one  General  Convention,  and  by  a  rei^olve  thereof  m:ide  known  to  the 
Convention  of  every  Dioeese,  and  adopted  al  the  subsequent  General  Convention.  And 
it  is  averred,  that  the  General  Convention  of  said  Church  has  established  and  set  forth  a 
Book  of  Common  Prayer,  Administration  of  the  Sacramenls,  and  other  rites  and  cere- 
monies of  the  Church,  to  wit.,  in  the  year  A.  D.,  1789 ;  and  it  is  also  averred  that  the 
Diocese  of  Illinois,  has  acceded  to  and  adopted  the  said  constitution,  to  wit.,  more  than 
thirty  years  prior  to  this  date. 

Specification  1 — In  this,  tluit  the  said  Rev.  Charles  E.  Chenby,  a  Presbyter  of  the 
Diocese  of  Illinois,  and  Rector  of  Christ  Chnrch,  in  the  city  of  Chicago,  in  said  Diocese, 
at  divers  times  during  the  two  years  la.»t  past,  and  while  publicly  officiating  in  cou- 
ductin<>-  religious  services  in  said  church,  did  intentionally  make  alterations  m  the  use 
of  the  Book  of  Conmiou  Prayer  and  ollkes  therein  set  forth,  contrary  to  the  law  and 
settled  order  of  this  Church. 

Speciflcntion  2— In  tliis,  that  the  said  Rev.  Charles  E.  Cheney,  a  Presbyter  of  the 
Diocese  of  Illinois,  and  Rector  of  Christ  Church,  in  the  city  of  ChicaL;o,  in  said  Diocese, 
at  divers  times  during  the  two  years  last  past,  in  the  parish  of  Christ  Church,  Chicago, 
in  the  administratiim  of  public  baptism  to  infants,  did  intentionally  omit  to  use  the  word 
"regeneration,"  and  the  word  "  regenerate,"  wherever  either  occurred  in  the  office  set 
forth  for  that  purpose  in  the  Book  of  Common  Prayer,  Administration  of  the  Sacra- 
ments, and  other  rites  and  ceremonies  of  this  Church. 

Specification  3— In  this,  that  the  said  Rev.  Charles  E.  Chexey,  a  Presbyter  of  the 
Diocese  of  Illinois,  and  Rector  of  Christ  Church,  in  the  city  of  Chicago,  in  said  Diocese, 
at  divers  times  during  the  two  years  last  past,  in  the  ministration  of  iiaplisni  to  infants, 
in  said  church,  did  intentionally  neglect  and  omit  to  use  the  office  set  forth  and 
established  by  this  Church,  in  the  Book  of  Common  Prayer,  in  manner  and  form  as  the 
said  office  is  set  forth  and  established  in  said  Book  ;  but,  on  the  contrary,  did  omit 
the  word  "  regenerate"  therefrom,  in  one  or  more  of  the  places  where  it  occurs  in  said 
office. 

Charge  ir.  Violation  of  his  engagement  to  conform  to  the  doctrines  and  worship 
of  the  Protestant  Episcopal  Church,  in  the  United  States,  contained  in  the  declaration 
which  was  subscribed  by  liim  before,  and  as  an  absolute  condition  preliminary  to,  his 
ordination  as  a  minister  in  said  Church,  as  prescribed  and  set  forth  in  article  7  of  the 
constitution  adopted  in  General  Convention  of  said  Church,  and  Avhich  declaration  is  as 
follows:  "  I  do  believe  tlie  Holy  Seriptu'-es  of  the  Old  and  New  TestamenL  to  he  the 
word  of  God,  and  to  contain  all  things  necessary  to  salvation  ;  and  I  do  solemnly  engage 
to  conform  to  the  doctrines  and  worship  of  the  Protestant  Episcopal  Church  in  the 
United  States." 

Specification  1 — In  this,  that  the  said  Rev.  Charles  E.  Cheney,  a  Presbyter  of  the 
Diocese  of  Illinois,  and  Rector  of  Christ  Church,  in  the  city  of  Chicago,  in  said  DioccsC, 
at  divers  times  during  the  two  years  last  past,,  and  while  officiating  as  a  minister  in  said 
Church,  did  intentionally  make  material  alterations  and  omissions  in  the  use  of  the 
Book  of  Common  Prayer,  and  offices  therein  set  forth,  in  violation  of  his  solemn 
engagement  to  conform  to  the  doctrines  and  worship  of  the  Protestant  Episcopal 
Church  in  the  United  States. 

Specification  2 — In  this,  that  the  said  Rev.  Charles  E.  Cheney,  a  Presbyter  of  th» 
Diocese  of  Illinois,  and  rector  of  Christ  Church,  in  the  city  of  Chicago,  in  said  Diocese, 
at  divers  times  during  the  six  months  last  past,  at  the  usual  religious  services  held  at 
said  Church,  for  the  ministration  of  public  baptism  of  infants,  according  to  the  office  or 
order  for  the  same,  as  set  forih  in  the  Book  of  Common  Prayer,  did  purposely  omit  to 
read,  say,  or  use  the  word  "  regeneration"  and  the  word  "regenerate,"  wherever  either 
of  said  words  occurred  in  said  office  or  order,  in  violation  of  his  solemn  engagement  to 
conform  to  the  doctrines  and  worship  of  the  Protestant  Episcopal  Church  in  the  United 
States. 

Specification  3 — In  this,  that  the  said  Rev.  Charles  E.  Cheney,  a  Presbyter  of  the 
Dioeese  of  Illinois,  and  liector  of  Christ  Church,  in  the  city  of  Chicago,  in  said  Diocese, 
at  divers  times  during  the  six  months  last  past,  while  in  the  discharge  of  his  official 
duties  in  the  parish  of  Christ  Church,  aforesaid,  in  the  administration  of  the  Sacrament 
of  baptism  to  infants,  did  intentionally  omit  to  use  the  word  "regenerate"  in  one  or 
more  of  the  places  where  said  word  occurs  in  the  office  set  forth  for  that  purposein  the 
Book  of  Common  Prayer ;  all  of  which  is  an  unauthorized  omission,  and  a  violation  of 
his  solemn  engagement  to  conform  to  the  doctrines  and  worship  of  this  Church. 

Charge  III.  Violation  of  the  solemn  promise  and  vow  made  by  him  at  his  ordination, 
■which  was  in  substance  as  follows  ; 

Question  by  the  BL'iJiop—"' ViiW  j'ou  then,  give  your  faithful  diligence,  always  so  to 
minister  the  doctrines  and  sacraments,  and  the  discipline  of  Christ  as  the  Lord  hath 
commanded,  and  as  this  Church  hath  received  the  same  according  to  the  commandmenta 


6 


TRIAL  OP  REV.  CHARLES  EDWARD  CHENEY. 


of  God,  so  that  yoii  may  tench  the  people  committed  to  yoitr  care  and  charge  with  all 
dilligence  to  kccj-i  and  ohscrve  the  same)"' 

Anxwcr — "  1  will  do  so  by  tlie  help  of  tlie  Lord." 

Specification  1— In  this,  that  the  Rev,  Charles  E.  Cheney,  a  presbyter  of  the  diocese  of 
Illinois  and  rector  of  Christ  cliurch,  in  the  city  of  Chicago,  in  said  diocese,  at  divers  times 
during 'the  12  months  last  past,  and  while  officiating  in  public  religious  services  in  said 
church,  did  purposely  make  material  alterations  and  omissions  in  such  services  as  set 
forth  and  established  by  this  church  in  the  book  commonly  called  "  The  Book  of  Com- 
mon Prayer,"  and  in  violation  of  the  solemn  ordination  vow,  that  he  would  minister  the 
doctrine,  sacraments,  and  discipline  as  this  church  hath  received  the  same. 

Specification  3— In  this,  that  the  Rev.  Charles  E.  Cheney,  a  presbyter  of  the  diocese  of 
Illinois,  and  rector  of  Christ  church,  in  the  city  of  Chicago,  in  said  diocese,  at  divers 
times  during  the  two  years  last  past,  and  while  in  the  discharge  of  his  official  duties  as 
such  rector  in  said  chin-ch,  did  intentionally  administer  the  sacrament  of  baptisjn,  in  the 
case  of  infants,  without  using  the  word  "  regenerate,"  and  the  word  "regeneration," 
as  said  words  occur  in  the  otlice  set  forth,  and  established  by  this  church  for  "  the  min- 
istration of  public  baptism  of  infants,"  all  of  which  is  in  violation  of  his  solemn  ordina- 
tion vow,  that  he  would  minister  the  sacranlents  as  this  church  hath  received  the  same, 
and  teach  the  people  committed  to  his  care  and  charge  to  keep  and  observe  the  sanle. 

Specification  3 — In  this,  that  the  Rev.  Charles  E.  Cheney,  a  presbyter  of  the  diocese  of 
Illinois,  and  rector  of  Christ  chUrch,  in  the  city  of  Chicago,  in  said  diocese,  at  divers 
times  during  tlie  two  years  last  past,  in  the  church  building  belohging  to  said  parish, 
did,  in  the  ministration  of  baptism  to  infants,  designedly  omit  to  Use  the  word  "regen- 
erate "  in  one  or  more  of  the  places  where  said  word  occurs  in  the  office  set  forth  by 
this  church  to  be  used  on  such  occasions;  all  of  which  is  in  violation  of  his  solemn  ordi- 
nation vow  and  promise  that  he  would  with  all  diligence  teach  the  people  committed 
to  his  cure  and  charge  the  doctrines,  sacraments  and  discipline  of  Christ  as  this  church 
hath  received  the  saine. 

Dated  at  the  city  of  Chicago,  the  31st  day  of  June,  A.  D.,  1869. 
GEORGE  F.  CUSHMAN,  D.  D., 

Rector  of  the  Church  of  the  Redeemer,  Princeton, 
RICHARD  F.  SWEET,  B,  D., 

Rector  of  the  Church  of  the  Epiphany  Chicago. 
L.  B.  OTIS. 

ARRAIGNMENT. 

After  reading  the  presentment,  Judge  Otis  said  : 

I  now  ask  that  the  accused  be  requested  to  produce  his  answer. 

AUTHORITY  WANTED. 

Mr.  THOMPSON-=-Before  going  further  I  would  ask  the  learned  Counsel  if  he  has  the 
commission  or  authority  under  which  the  presentors  act. 

After  a  little  delay  on  the  part  of  Judge  Otis,  Mr.  Thompson  asked  : 

Does  Judge  Otis  decline  to  furnish  the  authority  ? 

Judge  Oris — No,  sir  ;  I  was  only  looking  for  it.  We  arc  asked,  I  understand,  to  read 
our  appointment— -is  that  so,  Mr.  Thompson  ? 

Mr.  TiiOMi'SON— Yes,  sir  ;  we  would  like  to  have  it  preseiited. 

THE  COMMISSION. 
Judge  Otis  then  read  as  follows  : 
To  the  Rev.  George  F.  Cushman,  D.  D.,  rector  of  the  Church  of  the  Redeemer,  Prince- 
ton;  Rev.  Kiehard  F.  Sweet,  B.  D.,  rector  of  the  Church  of  the  Epiphany,  Chicago, 
and  Hon.  L.  B.  Otis,  of  Chicago,  a  commission  appointed  by  the  ecclesiastical  author- 
ity of  Illinois,  and  under  the  provisions  of  canon  20  of  said  diocese,  in  relation  to 
charges  against  Charles  E.  Cheney,  a  rector  of  Christ  Church  Chicago,  the  bishop 
of  Illinois,  greeting : 

Having  been  credibly  informeil  that  the  Rev.  Charles  E.  Cheney,  rector  of  Christ 
church,  in  the  city  of  Cliicagi),  had  in  substance  stated  that  he  coiUd  not  conscientiously 
use  the  otlicc  in  the  Book  uf  Common  Prayer  for  the  administration  of  public  baptism 
to  infants,  and  that,  in  consequence,  and  at  divers  times,  he  habitually  had  altered,  by 
omiasion  or  otherwise,  that  service  in  the  public  administi*ation  of  baptism  to  infants, 
and  especially  in  omitting  the  word  "  regenerate,"  or  the  word  "  regeneration,"  occur- 
ring In  the  said  service,  and  that  he  assumed  the  riijht  and  privileirc  of  thus  altering 
the  prescribed  form  of  this  sacrament,  I  called  upon"  the  Rev.  Mr.  Cheney  at  his  resi- 


TRIAL  OP  REV.  CHARLES  EDWARD  CHENEV.         i 

dcnee,  on  Monday,  May  31,  last  past,  in  the  afternoon,  and,  findinix  him  at  homo,  had 
with  liim  a  full  convi-rsation  on  the  whole  subject.  On  my  way  to  tliis  interview,  I 
called  on  the  Rev.  Edward  Sullivan,  M.  A.,  rector  of  Trinity  church,  whom  I  knew  to 
be  a  friend  of  Rev.  Mr.  Cheney,  to  ask  him  (Mr.  S.)  to  accompany  me  and  to  be  present 
during  the  intended  interview.  Rev.  Mr.  Sullivan  was  not  at  home,  however,  so  that 
the  interview  was  private  to  Mr.  Cheney  and  myself. 

In  the  conversation  Avhich  thus  took  place  in  the  library  of  the  parsonajre,  the  Rev. 
Charles  E.  Cheney,  aforesaid,  declared  to  me  that  the  statement,  which  I  repeated  in 
substance,  as  having  been  made  to  me,  was  the  fact,  so  far  as  it  related  to  his  (Mr.  Che- 
ney's) acts,  feelings,  and  jDurposes  :  that  he  could  not  conscientiously  use  the  oHlce  for 
the  public  baptism  of  infants  as  set  forth  in  the  Book  of  Common  Prayer  by  the  ehin-ch  ; 
that  he  habitually  made  changes  in  it  to  adapt  it  to  his  own  conscientious  scruples,  and 
the  appreliended  injurious  construction  of  portions  of  said  service  by  his  congregation  ; 
that  he  omitted  therefrom,  and  especially  the  words  "  regenerate  "  and  '*  regeneration," 
wherever  either  occurred,  and  that  he  should  continue  to  do  so. 

During  a  protracted  interview,  I  made  full  effort,  according  to  my  ability,  by  explana- 
tion, argument,  and  appeal,  to  remove  his  scruples  and  to  induce  him  to  conform  in  the 
future  to  the  worship  of  the  church  and  the  administration  of  the  sacrament  to  which 
lie,  on  ordination,  and  as  a  priest  in  this  church,  had  solemnly  and  distinctly  pronounc- 
ed conformity. 

I  set  forth  to  him,  as  a  godly  admonition  in  my  relation  to  him  as  a  bishop,  his 
bounden  duty  of  obedience  to  authority,  and  warned  him  of  the  painful  consequences  of 
discipline  which  must  follow  ;  but  Mr.  Cheney  continued  steadily  in  the  same  position 
— that  he  could  not  and  would  not  use  the  services  in  question  as  prescribed. 

At  the  close  it  was  agreed  that  Mr.  Cheney  should  take  a  week — a  suggestion  coming 
from  myself,-  and  the  limit  of  time  being  named  by  Mr.  Cheney  himself— for  a  deliberate 
consideration  of  the  matter,  with  the  assurance  from  me  that  I  should  feel  it  my  Imper- 
ative duty  to  take  measures  for  his  presentment  and  trial  for  thus  violating  his  ordina- 
tion vows  and  altering  the  prescribed  services  unless  he  should  withdraw  the  determin- 
ation he  expressed,  and  give  me  sufficient  assurance  that  he  would  hereafter  conform  to 
the  appointed  ritual  of  the  church. 

At  the  expiration  of  the  time,  and  on  or  about  Thursday,  June  10,  I  received  from 
Mr.  Cheney  a  note,  of  which  the  following  is  a  correct  copy  ! 

"Christ  Church,  Charles  E.  Cheney,  Rector,  June  10,  1869. — Reverend  and  Dcat'  Sir  : 
I  regret  that  circumstances  compelled  me  to  delay,  for  a  few  hours,  the  answer  which  I 
promised  to  send  you  in  one  week  from  our  conversation  on  Monday,  the  31st  ultimo. 
After  most  serious  and  prayerful  deliberation,  I  can  only  say  that  I  have  been  able  to 
arrive  at  no  other  conclusion  than  that  I  expressed  to  you. 

Very  truly  yours, 

Charles  Edward  Cheney. 
"  To  Rt.  Rev.  Henry  J.  Whitehouse," 

This  note  refers  expressly  to  the  decision  received  after  the  deliberation  expressed  in 
the  conversation  alluded  to  above,  and  it  must  be  taken,  therefore,  to  admit  a  change 
or  alteration  of  the  office  for  infant  baptism,  and  an  omission  from  the  prescribed  form, 
especially  of  the  words  "  regenerate  "  and '' regeneration,"  and  the  resolution  to  con- 
tinue the  same  alterations  and  omissions  all  j^tii'soual  appeal  and  official  admonition 
from  myself  to  the  contrary  notwithstanding.  I,  therefore,  have  reason  to  believe  that 
the  said  Kev,  Charles  E.  Cheney,  rector  of  Christ  church,  Chicago,  is  uncVcr  imputation 
of  being  guilty  of  offences  and  misconduct  for  which  he  is  liable  to  be  tried,  and  that 
the  interests  "of  the  church  require  an  investigation. 

Therefore,  in  obedience  to  the  provisions  of  canon  20,  of  the  diocese  of  Illinois,  I  do 
hereby  appoint  you  as  trusty  and  well-beloved  presbyters  and  laymen  of  my  jurisdic- 
tion, George  F.  Cushman,  D.  D.,  rector  of  the  Church  of  the  Redeemer,  Princeton,  Rev. 
Richard  F^  S-.veet,  B.  D.,  rector  of  the  church  of  the  Epiphany,  Chicago,  and  Hon.  Lucius 
B.  Otis,  of  Chicago,  or  a  majority  of  the  same,  to  examine  the  case,  and  if,  in  your  opin- 
ion, there  be  sufficient  grounds  for  a  presentment,  you  shall  present  the  said  clergyman 
said  Rev.  Charles  E.  Cheney  to  me,  the  bishop,  that  I  may  proceed  to  order  a  trial  ac- 
cording to  canonical  provisions  therefor. 

Given  under  my  hand  and  Episcopal  seal,  this  12th  day  of  June,  A.  D.,  1869,  and  the 
eighteenth  of  my  consecration. 

Henry  J.  Whitehouse,  Bishop  of  Illinois. 

Mr.  Thompson — Mr.  President,  as  the  paper  which  has  just  been  presented  is  very 
intimately  connected  with  questions  with  reference  to  the  jurisdiction  under  which  pro- 
ceedings here  are  instituted,  we  shall  have  some  exceptions  and  olyections  to  make  con- 
nected Avith  it.    Inasmuch,  as  this  is  the  first  time  we  have  seen  it,  we  would  like  to 


8         TRIAL  OP  REV.  CHARLES  EDWARD  CHENEY. 

look  at  it  and  consult  some  over  it.  But  I  Will  present  auother  question  now,  and  in  the 
meantime  we  can  look  at  the  i)aper. 

We  would  like  to  know  if  all  the  eight  presbyters  named  in  the  citation  are  present 
here. 

The  Presidext— That  is  a  question  the  court  are  unable  to  answer. 

Mr.  TnoMPSON^Will  counsel  answer  ? 

Judge  Otis— I  see  five  here.  I  do  not  know  all  of  them.  I  know  of  no  law  requiring 
them  to  attend,  and  I  do  not  know  that  they  are  here. 

Mr.  Thompson— As  intimated  by  the  judge  in  his  opening  remarks,  we  would  like  to 
have  this  trial  conducted  with  propriety  and  fairness.  And  we  would  like  the  right  to 
examine  these  gentlemen  with  reference  to  their  qualifications  to  sit  as  assessors  in  this 
trial.    Would  the  gentlemen  grant  us  that  privilege?    I  ask  for  that  privilege. 

The  Prbsidsnt— I  understand  the  objection,  as  it  is  presented,  touches  certain  facts 
which  lie  outside  of  the  canon  entirely.  Therefore,  it  would  be  denied.  As  to  objec- 
tions which  come  within  the  canon,  of  course  such  objections  would  be  received  and 
entertained  by  the  court.  Any  that  lie  outside  of  the  purview  of  the  canon — or  the 
strict  construction  of  the  canon — of  course  woiild  be  declined  by  the  court.  As  I  un- 
derstand the  objections,  as  presented  somewhat  loosely  by  the  gentleman,  they  are  over- 
ruled. 

Mr.  FCLLEK — I  understand  that  my  associate  has  presented  no  objections  at  all. 

Mr.  Thompson— It  is  a  mere  question. 

Mr.  FuLLEK — He  asked  the  president,  or  counsel  through  him,  one  or  both  of  them, 
to  state  whether  the  eight  persons  named  in  the  citation  were  present  with  a  view  of 
being  examined,  or  whether  the  five  presbyters,  who,  it  is  admitted  are  present,  were 
willing  to  be  examined,  or  contemplate  being  examined  touching  their  competency  to 
eit  as  assessors  in  the  case,  inasmuch  as  I  understand  from  the  intimation  of  the 
court,  the  position  is  taken  that  the  eight  presbyters  need  not  be  present,  it  is  a  conces- 
sion that  they  are  not  liere.  We  do  not  see  them  here.  They  are  not  officially  here. 
Since  also  what  has  fallen  from  the  presiding  officer  makes  it  apparent  that  the  examin- 
ation of  tlie  members  of  the  court  is  denied,  I  will  file  a  protest  and  objection,  or  hand 
it  to  the  coiu-t  to  be  filed,  and  would  like  to  be  heard  with  reference  to  the  matter. 
(Here  the  paper  w"as  handed  to  the  court.)  I  have  a  copy  here  which  I  will  read,  as  a 
matter  of  convenience.  It  is  a  matter  of  the  highest  moment.  It  is  not  a  question 
that  I  x)resent  witli  any  desire  to  reflect  upon  tlie  gentlemen  who  are  present,  at  all.  It 
is  of  the  utmost  importance  to  tlie  accused  that  the  tribunal  sliould  be  impartial,  and 
not  only  so,  but  that  he  should  be  satisfied  of  tlieir  impartiality.  And  it  is  of  tlie  highest 
importance  to  the  church,  of  course,  that  no  impression  or  conviction  should  be  pro- 
duced that  there  is  any  want  of  impartiality.  And  from  information  reaching  our 
client,  respecting  one  of  the  five  who  is  present,  and  who  assumes  to  act  as  a  member  of 
the  court,  it  became  our  duty  to  bring  this  matter  up  at  the  earliest  possible  moment— 
which  is  the  present  one.  I  understand  the  course  pursued  is  to  read  the  papers,  as  has 
been  done  by  my  learned  friend  upon  the  other  side,  and  when  the  moment  shall  arrive 
for  the  accused  to  present  his  defence  and  put  in  liis  plea,  then  it  will  be  proper  that  he 
should  be  heard  before  the  gentlemen  who  assume  to  try  him  as  a  court,  proceed.  It  is 
our  client's  .and  our  own  desire  that  the  hearing  and  trial  of  the  case  be  conducted  upon 
the  principles  named  by  my  learned  friend,  wilh  entire  courtesy  and  entire  fairness. 

The  objection  and  protest  is  as  follows  : 

PROTEST, 
Diocese  of  Illinois— In  the  matter  of  the  presentment  of  George  F,  Ciishman,  D,  D., 
Richard  F.  Sweet,  B.  D.,  and  L.  B.  Otis  vs.  Rev,  Charles  Edward  Cheney. 

To  the  Rev.  Samuel  Chase,  D.  D.,  Rev.  Thomas  N.  Benedict,  Rev.  John  Benson,  Rev, 
Henry  N.  Pierce,  D,  D.,  and  Rev.  A.  W.  Snyder— Protest  and  objection  ; 
Charles  Edward  Cheney,  the  accused  in  the  alleged  presentment  aforesaid,  not  admit- 


TRIAL  OP  REV.  CHARLES  EDWARD  CHENEY.  » 

i\tig  fhe  charges  and  specifications  in  said  alleo^cd  presentment  contained  are  tlierein 
veil  and  sufficiently  stated  and  sL-t  fortli,  nor  that  the  same  or  any  or  either  of  them  are 
or  is  true,  nor  that  the  cilat'Kni  issued  thereon  is  sufficient  in  form  or  substance  :  Never- 
theless, by  way  of  objection  and  protest,  says  that  eognizanee  of  the  said  alleged  present- 
ment, and  the  charges  and  speeitteations,  matters  and  things  .therein,  cannot  be  taken 
by  Rev.  Samuel  Chase,  D.  D.,  Rev.  Thomas  N.  Benedict,  liev.  John  Benson^  Rev.  Henry 
N.  Pierce,  D.  D.,  and  Rca',  A.  W.  Snyder,  who  now  and  here  appearing  elaim  as  a 
court  so  to  do,  upon  the  grounds  severally  assigned  following,  to  wit,: 

1.  Because  eight  presbyters  eanonically  qualifled  to  act  as  assessors  in  tlie  premises 
have  not  presented  themselves,  and  are  not  present  at  this,  the  return  day  of  the  cita- 
tion issued  herein,  at  the  time  and  place  therein  specified  for  the  selection  therefrom  by 
the  aeeused  of  not  less  than  three  nor  more  than  live,  to  act  as  assessors  as  aforesaid. 

2.  Beeause  the  said,  the  Rev.  Samuel  Chase,  D.  D.,  Rev.  Henry  N.  Pierce,  U.  D.,  Rev. 
Thomas  N.  Benedict,  Rev.  John  Benson,  and  Rev.  A.  W.  Snyder,  decline  to  be  examin- 
ed by,  or  on  behalf  of,  the  accused  touching  their  qualifleations  to  sit  as  assessors  con- 
stituting the  court  for  the  trial  of  the  presentment  herein,  in  respect  to  the  formation 
or  expression  by  either  of  them  of  an  opinion  as  to  the  guilt  or  innocence  of  the  accus- 
ed in  the  premises. 

3.  Because  the  said,  the  Rev.  A.  W.  Snyder  has  formed  and  expressed  the  opinion  that 
the  accused  is  guilty  in  the  premises,  and  he  is  therefore  incompetent  to  sit  as  an  asses- 
sor on  the  triafof  said  alleged  presentment. 

4.  Because  no  list  of  eiglit  presbyters,  qualified  to  sit  upon  the  trial  of  said  present- 
ment has  been  furnished  to  accused,  out  of  which  to  select  assessors  as  by  canon  provi- 
ded. 

For  which  said  several  reasons,  one  or  some  of  them,  the  accused  insists  that  the  said, 
the  Rev.  Samuel  Chase.  D.  D.,  Rev.  Thomas  N.  Benedict,  Rev.  John  Benson,  Rev.  Henry 
N.  Pierce,  D.  D.,  and  Rev.  A.  W.  Snyder,  ought  not  to  act  as  assessors  constituting  a 
court  in  the  premises,  and  cannot  lawfully  proceed  so  to  do. 

Charles  Edward  Cuexey. 

Mr.  Fuller  then  addressed  the  court  in  a  lengthy  argument  in  support  of  the  (C:hal- 
lenge  or  objections  in  question.  He  in.sisted  that  ecclesiastial  trials  must  be  coin.dMcted 
according  to  the  rules  of  the  common  law  and  read  from  the  opinion  of  Bishoj>  Hopkin.s 
in  the  Onderdonk  case  as  also  from  the  general  canons  to  sustain  this  positioiiv  He  then 
reviewed  the  common  law  right  of  challenge  and  also  read  from  the  trial  of  tlie  Rev.  Mr. 
Trapxell,  in  Maryland,  to  show  that  a  challenge  had  been  made  and  considered  there. 

The  challenge  in  this  instance  was  made  not  only  to  the  individual  and  so  to  thopoills, 
but  also  to  the  array.  The  different  kinds  of  challenges  at  common  law  were  fully  con- 
sidered. De  Hart  on  Military  Law  Avas  also  cited  to  show  the  rule  in  courts  martial 
which  like  courts  spiritual  in  this  country  are  court*  of  special  creation  and  limiiled  juris- 
diction. The  greatest  liberality  of  challenge  was  extended  in  such  courts.  He  also  read 
from  opinions  of  Hon.  Felix  Grundy  and  Hon.  Henry  Gilpin,  when  liUing  thic  office  of 
Attoniey  General,  that  the  formation  and  expression  of  an  opinion  disqaalified,  laembers 
of  a  Navy  Court  Martial. 

He  claimed  the  same  rule  existed  in  the  recusatiojuaicis  of  the  civil  and  canon  law. 

The  learned  proctor  insisted  that  in  the  absence  of  a  provisicm  to  the  contrary  in  t;he 
canon,  the  right  of  challenge  must  be  conceded  and  he  discussed  at  length  all  the  pro- 
visions of  the  canon,  to  show  that  such  right  was  intended  to  be  exercised. 

Mr.  Fuller,  in  the  course  of  his  argument,  said  that  one  of  his  associates  and  liiJngelf 
had  endeavored  to  obviate  the  necessity  of  raising  this  question  and  witli  that  vi'i^  had 
sent  the  Bishop  the  following  letter  : 

CwCAQo,  Jitne  28..1S69; 

Sight  R^wrend  <md  Dear  Sir :  Rev,  Mr.  Clicney  has  desired  us  to  act  as  his  advocates 
and  proctors  in  the  proceedings  in  relation  to  certain  alleged  offences  and  miscondjuct 
on  his  part,  claimed  to  render  him  liable  to  trial. 

We  have  perused  the  papers  served  upon  him,  and  will,,  upon  due  examinatijon,  pce-- 
«ent  at  the  proper  time  such  objections  as  occur  to  us  should  be  taken  thereto..  In  \\iii 
meantime,  however,  the  request  tliat  our  client  shall,  within  a  spiccifled  timje,  yiz.ilQt 
days,  select  out  of  a  list  of  presbyters  furnished  by  you,  not  less  than  three  w)r  n«)re- 
than  five  to  act  as  jnembers  of  the  court  to  be  charged  with  the  consideration  of  the  alleged! 
offence,  induces  us  to  offer  certain  suggestions,  with  no  intention,  of  course ,  of  waiving 
any  grounds  of  objection  to  either  process  or  presentment  that  maybe  fovjid  to  exist. 
It  has  been  claimed  that  the  accused  in  such  cases  is  entitled  to  the  personal. appearance- 


10  TRIAL   OF    REV.    CHARLES    EDWARD    CHENEY. 

of  f"he  clergymen  nominated  by  the  bishop,  for  examination  tonchiug  their  competency 
to  sit  as  assessors,  to  the  end  that  snch  as  may  be  open  to  challenge  for  cause  may  be 
excluded  from  the  list,  and  the  accused  be  enabled  to  select  from  an  entire  number  of 
unobjectionable  persons. 

On  the  other  hand  this  has  been  denied,  and  the  rule  insisted  to  be  that  the  nominees 
of  the  bishop  cannot  be  examined  as  to  competenc}',  but  the  selection  must  be  made 
from  whomsoever  he  sees  fit  to  designate.  We  do  not  seek  to  enter  into  any  discussion 
of  this  question,  The  presumption  is  to  be  indulged  that  in  this,  as  in  all  other  cases, 
if  a  trial  is  to  be  had  it  is  designed  to  be  impartial.  And  it  is  submitted  that  impartial- 
ity can  only  be  secured  by  giving  the  accused  the  opportunity,  in  some  way,  to  ascer- 
tain that  those  who  may  be  his  judges  are  free  from  disqualifying  bias.  The  20th  dioces- 
an canon  is  careful  to  guard  the  prosecution  from  any  prejudice  in  the  assessors  in  favor 
of  the  accused.  It  is  not  too  much  to  ask  that  some  means  should  be  adopted  to  prevent 
prejudice  of  an  opjjosite  character.  At  the  same  time  we  do  not  perceive  the  necessity  of 
the  pergonal  jiresence  of  the  desiguated  presbj'ters  for  the  purpose  of  examination.  Such 
a  course,  we  readily  concede,  would  be  productive  of  trouble  and  expense  as  well  as  delay. 
Assuming  the  presbyters  nominated  in  this  instance  to  be  canonically  qualified,  it  would 
seem  eminently  just,  and,  in  fact,  absolutely  requisite  to  the  proper  constitution  of  the 
court  whenever  organized,  that  it  should  be  ascertained  whether  they,  or  either  of  them, 
have  formed  or  expressed  an  opinion  as  to  the  guilt  m*  innocence  of  the  accused. 

As  prejudgment  would  necessarily  render  them  incompetent,  we  deem  it  essential 
that  the  inquiry  should  be  made  as  to  whether  it  exists  or  not.  Such  inquiry  'we  can 
easily  make  by  letter,  but  deemed  it  proper  before  doing  so,  to  solicit  your  views  in  re- 
lation to  it.  Very  respectfullv  yours, 

MELVILLE  W.  FULLER. 

M.  BYRON  RICH. 

To  the  Right  Rev.  Henry  J.  Whitehouse,  Bishop  of  the  Diocese  of  Illinois. 
To  which  he  replied  as  follows  : 

Chicago,  July  5,  1869.— Melville  Fuller,  Esq. ;  M.  Byron  Rich,  'Esq.—Oenflemen — 
I  have  received  your  note  of  June  2S,  to-day,  advising  me  that  you  are  acting  as  counsel 
for  the  Rev.  C.  E.  Cheney,  and  that  you  propose  on  the  constitution  of  the  court  to  ap- 
ply to  act  as  his  "  advocates  and  proctors,"  the  qualifications  for  which  are  defined  in 
canon  20. 

In  answer  to  your  suggestion  on  the  supposed  right  of  '■^challenge  of  the^persons  who 
may  be  his  judges  to  ascertain  that  they  are  free"  from  disqualifying  bias,"  I  beg  to 
refer  you  for  my  views  in  relation  to  that  subject  to  the  "'answer  of  the'bishop  of  Illinois 
to  the  bill  of  complaint  for  an  injunction  from  the  superior  court  of  Chicago,  on  the  eccle- 
siastical trial  of  the  Rev.  Elijah  W.  Hager,"  especially  to  page  14,  and  page  49  etseq. 

The  time  limited  for  the  selection  by'the  respondent  has  determined,  and  I  shall  con- 
vene the  standing  committee  for  the  alternative  selection  on  Thurday  morning  next,  but 
in  the  interim,  the  right  of  selection  may  be  assumed  to  be  still  open  to  the  accused. 
Very  respectfullv  your  friend  and  servant, 

HENRY  J.  WHITEHOUSE,  Bishop  of  Illinois. 

This  answer  of  course  precluded  any  further  effort  in  that  direction.  Mr.  Fuller  re- 
viewed the  Bishojp's  views  as  referred  to  by  him  and  insisted  that  they  were  entirely  un- 
sustainable. 

Judge  Otis — Before  going  further,  please  restate,  Mr.  Fuller,  j-our  motion.  I  must 
confess,  that,  after  listening  to  all  the  learning  of  the  gentleman,  I  am  a  little  in  the  fog 
as  to  the  precise  biotion —  the  precise  point  that  you  ask  the  sourt  to  decide. 

Mr.  Fuller  —  I  was  not  aware  that  my  much  learning  had  made  you  mad,  Judge  Otis. 
I  will  restate  the  point  with  pleasure  : 

That  the  five  gentlemen  who  appear  here,  claiming  to  act  as  a  court,  ought  not  to 
take  cognizance  of  this  presentment,  because  no  opportunity  has  been  given  to  examine 
the  eight  presbyters  named  in  the  citation,  with  a  view  to  ascertaining  their  competency 
to  sit :  because  the  five  who  do  appear  decline  to  be  examined  ;  because  one  of  the  five 
who  do  appear  has  formed  and  expressed  an  opinion  that  the  accused  is  guilty  in  the 
premises,  and  because  no  list  of  eight  presbyters  qn«ilifled  to  sit  —  of  course  my  friend 
will  understand  that  we  concede  that  a  list  of  eight  presbyters  was  furnished  to  us  —  but 
no  list  of  eight  presbyters  qtudified  to  sit  has  been  furnished.  It  seems  to  me  that  if  one 
of  the  five  is  uiconipetent,  the  court  cannot  proceed,  It  seems  to  me  that  even  waiving 
the  right  of  calling  for  the  eight  to  appear,  we  have  the  right  to  examine  the  five  who 


TRIAL    OF    REV.    CHARLES    EDWARD    CHENEY.  11 

do  appear  ;  but  waivinj;  both  these,  if  we  show  that  one  of  the  five  that  do  appear  has 
expressed  an  opinion  tlial  dis(iiialities  liim,  it  vitiates  the  whole  proceeding  and  disquali- 
fies the  court. 

Judge  Otis  said  he  would  not  go  over  the  ground  at  length.  He  considered  the 
members  of  tlie  court  had  had  large  experience  and  knew  what  was  right.  The  presby- 
ters sit  as  assessors,  not  as  jurors,  and  assessors  are  no  more  than  masters  in  chancery. 
They  find  the  facts  and  report.  The  right  of  cliallenge  was  a  good  common  law  right, 
but  could  not  obtain  in  a  court  of  special  creation  under  the  canon  law  of  the  church, 
unless  the  canon  so  prescribed.  The  canons  of  no  diocese  allowed  it.  The  answer  to 
Mr.  Fuller  is,  that  this  diocese  has  made  provision  for  no  sucli  thing. 

The  objection  ought  to  have  been.niade  before.  Mr.  Snyder  was  a  brother  clergyman 
and  that  was  enough.  The  principles  of  the  common  law  have  nothing  to  do  witli  these 
trials.  Such  a  practice  was  inconsistent.  In  a  small  diocese  like  that  of  Kansas  there 
could  not  be  a  trial  for  want  of  a  jury. 

Mr.  FiLLEK  rejoined  that  the  inconvenience  suggested  in  a  snuiU  diocese  furnished  no 
reason  for  a  denial  of  justice.  That  assessors  were  in  no  wise  like  nuisters  in  chancery, 
for  tliey  fixed  the  sentence  as  well  as  found  the  verdict.  That  impartiality  was  the  rule 
of  all  courts,  and  any  other  was  abhorent  to  all  ideas  of  justice.  That  the  canon  itself 
showed  in  providing  that  no  one  of  kin  to  the  accused  should  sit  as  assessor,  that  no 
presumption  was  indulged  because  a  man  was  clergyman  that  the  common  feelings  of 
humanity  might  not  influence  him.  That  the  objection  could  not  be  made  before,  as 
there  was  no  one  to  pass  officially  upon  it.  That  they  had  tried  this  witli  the  bishop 
and  failed.  He  read  from  Ilottman  on  the  law  of  the  church  in  approval  of  the  preva- 
lence of  common  law  principles  in  such  trials,  and  insisted  that  the  law  of  the  land 
must  prevail. 

Mr.  Thompson — Before  this  matter  is  forced  upon  the  presbyters  for  decision,  I  want 
to  call  the  attention  of  the  counsel  to  another  point. 

Judge.  Otis — Do  you  propose  to  raise  another  question  ? 

Mr.  TnOMPSOX — I  intimated  when  I  called  for  this  document  which  I  hold  in  my 
hand,  that  there  was  a  question  tliat  we  were  not  prepared  to  present ;  because  we  had 
not  seen  this  paper.  We  requested  that  it  be  delivered  to  us  for  the  purpose  of  inspect- 
ing it.  I  will  not  be  long  in  presenting  my  point.  I  will,  however,  allow  the  presby- 
ters to  determine  the  other  question  first. 

Judge  Otis — I  think  we  had  better  take  them  in  order. 

Mr.  Thompson — I  suppose  it  would  be  proper  to  have  this  question  determined  fii-st. 

Judge  Otis — I  don't  know  as  I  have  any  objection  to  disposing  of  it  now.  We  want 
to  get  all  these  preliminary  questions  settled  if  we  can.  I  think  you  had  better  present 
it  now. 

Mr.  Fuller — When  docs  this  meeting  expect  to  adjourn  ? 

The  President — The  court  will  assemble  at  half-past  2. 

Mr.  Fuller — I  did  not  understand  what  the  hour.s  were  to  be. 

The  President— The  court  will  assemble  at  2}4  oclock  P.  M.,  and  at  10  A.  M. 

Judge  Otis— Mr.  Thompson,  supposhig  you  make  your  point  now,  and  I  will  theB;isk 
the  court  to  adjourn. 

Mr.  Thompson— I  will  do  so  Ijriefly.    The  citation  has  never  been  formally  offeretL 

Mr.  Fuller — I  suppose  it  is  considered  as  in. 

Judge  Otis — Of  course  ;  I  suppose  so. 

Mr.  Thompson — Of  course  we  reserve  our  exceptions  to  the  citation  and  tlie  present- 
ment which  may  come  up  hereafter.  We  do  not  wish  to  be  understood  as  having  waiv- 
ed any  exception. 

I  shall  simply  present  our  objections  now  to  the  commission,  which  is  that  it  does 
not  pretend  to  be  issued  upon  either  of  the  three  sources  of  information  furnished  by 
the  canon. 

Mr.  Thompson  read  the  deffinition  of  offences  in  tlie  general  canon,  and  also  from 
canon  XX  of  the  diocesan  canons  which  provides  that  the  mode  of  proceeding  shall  be 


12        TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

for  the  bishop  to  organize  a  commission  to  present  when  he  has  reason  to  believe  on  in- 
formation furnished  by  three  presbyters,  the  major  part  of  the  vestry,  or  public  rumor, 
as  contemplated  by  the  second  section  of  general  canon  XXXVII. 

And  continued :    Now  the  bishop  does  not  pretend  to  be  proceeding  on  either  of 
these  gi-ounds,  and  therefore  had  no  power  to  proceed  at  all.    This  precise  point  was  ruled 
in  Hager's  case  by  Chief  Justice  Wilson.     Judge  Wilson  says  that  the  words  of  the  . 
canon  operate  as  a  limitation  whether  considered  as  a  grant  or  otherwise. 

So  far  as  the  opinion  of  the  court  which  pronounced  this  decision  is  concerned,  it  seema 
to  me  there  is  no  question  that  is  not  applicable  in  this  case.  It  is  necessary  for  us  to 
know  how  this  commission  that  sits  here  derives  its  powers.  It  is  necessary  to  know,  al- 
so, how  this  information  that  sets  these  proceedings  in  motion  came  to  the  knowledge  of 
the  bishop.  That  goes  to  the  jurisdiction  of  the  proceedings.  If  it  is  not  satisfactory 
upon  the  face  of  the  papers,  and  is  not  in  accordance  with  one  of  the  three  modes  point- 
ed out  by  the  canon,  we  know  of  no  other  mode  in  existence.  Hence,  we  bring  this  case 
within  the  decision  of  Judge  Wilson,  and  ask  that  the  decision  be  received  as  determin- 
ing the  question  of  jurisdiction  of  the  proceedings  in  this  case. 

Judge  Otis  —  I  would  only  reply  in  a  very  few  words.  A  commission  of  presbyters, 
or  laymen  summoned  in  a  case  is  not  required  to  satisfy  itself  as  to  the  jurisdiction  of 
the  bishop.  The  fact  that  cause  exists  to  the  satisfaction  of  the  bishop  in  any  of  the 
points  covered  by  the  canon  is  sufficient.  He  appoints  the  commission.  It  is  not  for 
the  commission  to  inquire  why  he  proceeds.  We  have  not  inquired.  I  do  not  under- 
stand that  he  has  necessarily  informed  us.  We  need  not  ask.  He  gave  us  a  certain  state 
of  facts.  Whenever  a  clergyman  is  under  an  imputation  of  having  been  guilty  of  a 
certain  thing,  he  appoints  persons  to  investigate  the  charges.  We  do  not  go  back  to  in- 
quire of  the  information  of  the  bishop.  We  simply  investigate  de  novo  upon  the  evi- 
dence before  us.  I  do  not  undertake  to  inform  the  other  side  upon  what  ground  of  in- 
formation the  bishop  acted  in  calling  this  commission.  The  appointment  simply  recites 
certain  facts  that  exist,  alleging  disorderly  conduct,  the  violation  of  the  canons  of  the 
church. 

He  recites  these  facts  and  thereupon  appoints  us.  We  thereupon  organize  to  investi- 
gate them  de  rwvo  according  to  the  presentment. 

The  bishop  may  have  received  information  from  three  presbyters,  residing  within  the 
diocese.  He  may  have  had  it  from  public  rumor.  We  have  no  knowledge  of  how  he 
derived  it.  He  simply  says  this  clergyman  is  under  an  imputation,  and  therefore,  he 
appoints  us. 

We  are  not  to  delay  our  inquiry  into  the  matters  presented  for  our  investigation  until 
we  know  upon  what  grounds  the  bishop  proceeds.  I  simply  say  we  were  appointed 
under  a  canon  now  in  full  force  and  effect ;  that  is  all. 

Mr.  Fuller — I  desire  to  suggest  that  it  is  a  little  late,  and  I  think  this  question  might 
very  properly  be  reserved  until  after  the  decision  of  the  other  point.  Necessarily  when 
we  come  to  the  consideration  of  the  citation  and  presentment,  the  same  jurisdictional 
objection, will  be  presented.  It  is  an  important  question,  and  it  will  needlessly  take  up 
time  to  discuss  it  now.    I  suggest  that  an  adjournment  be  had. 

The  president  then  announced  the  court  adjourned  until  half  past  2  o'clock  P.  M. 

AFTERNOON  SESSION. 

At  half  past  2  the  court  reassembled ;  half  an  hour's  devotional  exercises  having 
preceded,  when  the  president  arose  and  said. 

The  court  is  now  open  for  the  business  before  it ;  and  in  reference  to  the  objections 
which  were  made  to  the  organization  of  the  court,  the  court  declines  to  entertain  them, 
and  overrules  them. 

Rev.  Dr.  Ch.4.se  said  the  court  was  now  ready  to  open  business. 

Mr.  Thompson — The  second  point  raised  was  not  submitted  to  the  court. 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.         13 

Judge  Otis — I  will  consider  it  on  my  part  as  submitted,  if  yon  have  no  objection. 

Mr.  Fuller — It  was  not  so  considered  on  my  part,  for  I  expressly  stated  tliat  I 
thought  it  should  be  reserved  until  the  other  point  raised,  was  decided.  My  friend  and 
associate,  Mr.  Thompson,  simply  sought  to  suggest  the  point  to  the  assessors  and  to 
Judge  Otis. 

Rev.  Mr.  Snyder — May  it  please  the  court,  I  would  state  here  concerning  the  matter 
decided  upon,  that  I  say  with  all  eontidence  I  never  expressed  an  opinion  touching  the 
guilt  of  the  accused.  I  am  perfectly  certain  of  this.  It  were  an  absurdity  to  suppose 
that  one  would  express  an  opinion  touching  the  accused  party  when  entirely  ignorant 
of  all  the  testimony  which  would  substantiate  such  charges.  Of  course,  of  all  the  tes- 
timony that  would  substantiate  such  charges  I  am  entirely  ignorant,  and  almost  know 
nothing  about  the  way  in  which  Mr.  Cheney  administers  his  services  at  any  time  or 
place. 

Judge  Otis — We  ask  that  the  case  be  now  proceeded  with  in  the  usiial  order,  unless 
there  are  some  more  preliminary  motions. 

Mr.  FcLLEK— Well,  Mr.  President,  there  is  a  little  difference  of  opinion  here — there 
is  a  misunderstanding  which  the  court  will  do  well  to  correct  before  proceeding  further. 
I  certainly  did  not  consider  that  the  objections  to  the  commission  had  been  submitted. 
As  however  the  same  objections  to  the  jurisdiction  are  raised  on  the  citation  and  prc^ 
sentment,  the  argument  based  on  them  may  go  to  the  commission  as  far  as  applicable. 
I  will  file  the  following  exceptions  : 

Diocese  of  Illinois— In   the  matter  of  the  presentment  of  George  F.  Cxishman,  D.  D., 
Richard  F.  ;Sweet,  B.  D.,  and  L.  B.  Otis,  vs.  Charles  Edward  Cheney. 

To  the  Rev.  Samuel  Chase,  D.  D.,  Rev.  John  Benson,  Rev.  Henry  N.  Pierce,  D.  D., 
Rev.  Thomas  N.  Benedict,  and  Rev.  A.  W.  Snyder,  assessors. 

The  exceptioias  of  Charles  Edward  Cheney,  presbyter  of  said  diocese  and  rector  of 
Christ  church,  in  the  city  of  Chicago,  in  said  diocese  to  the  alleged  presentment  by  Rev. 
George  F.  Cushman,  D.  D.,  Rev.  Richard  F.  Sweet,  B.  D.,  and  L.  B.  Otis,  and  to  the  ci- 
tation issued  thereon,  allege  that  the  said  assessors  ought  not  to  take  cognizance  of  the 
said  alleged  presentment,  and  the  charges  and  specifications  therein  contained,  and  that 
the  same  and  the  citation  issued  thereon,  should  be  quashed  for  the  reasons  and  upon 
the  grounds  following,  to  wit.  : 

First  Ezcrption — I  hat  in  and  by  the  said  citation,  it  is  declared  by  the  bishop  of  this 
diocese,  under  his  hand  and  F<piscopal  seal,  that  the  Rev.  George  E.  Cushman,  D.  D., 
the  Rev.  Richard  F.  Sweet,  B.  D.,  and  Hon.  L.  B.  Otis,  were  appointed  by  said  bishop 
a  commission  to  examine  the  otlence  and  misconduct  for  Avhicli  the  said  bishop  consid- 
ered this  respondent  liable  to  be  tried,  and  that  the  interests  of  the  churcli  required  an 
investigation,  and  that  said  alleged  presentment  was  found  by  the  said  three  persons  so 
appointed  a  comission  accordingly:  Wherefore,  it  appears  from  the  citation  aforesaid, 
that  the  appointment  of  said  three  persons  as  a  commission  as  aforesaid,  was  invalid  and 
void,  as  also  was  the  alleged  presentment  aforesaid  so  by  such  illegal  and  void  commis- 
sion pretended  to  be  found. 

Second  Exception — That  the  bishop  of  this  diocese  at  the  time  of  his  appointing  the  al- 
leged presbyters  by  whom  the  said  alleged  presentment  was  found,  did  not  have  reason 
to  believe  on  information  given  by  a  major  part  in  number  of  the  vestry  of  said  Christ 
church,  or  by  any  three  presbyters  of  this  diocese  entitled  to  seats  in  the  convention  of 
this  diocese,  or  from  "public  rumor  as  contemplated  by  section  'i,  of  canon  37,"  of  the 
general  convention  that  this  respondent  was  under  imputation  of  having  been  guilty  of 
any  otfence  or  miscondut  for  which  he  M'as  liable  to  trial,  and  that  the  interests  of  the 
church  required  an  investigation. 

Third  Exceptiim— That  this  respondent  was  not,  at  the  time  of  the  appointment  of  the 
said  alleged  presentors,  or  at  the  time  of  the  finding  of  said  alleged  presentment  under 
imputation  of  having  been  guilty  of  any  oflfence  or  misconduct  for  which  he  was  liable  to 
trial. 

Fourth  Exception — That  in  and  by  said  alleged  presentment  it  does  not  affirmatively 
appear  that  the  presentors  thereof  were  appointed,  and  said  alleged  presentment  tliere- 
by  authorized  (if  cause  existed),  to  be  found  because  the  bishop  of  the  diocese  aforesaid 
had  reason  to  believe  when  he  appointed  said  presentors  on  information  iriven  by  a  ma- 
jor part  in  numbers  of  the  vestry  of  the  church  of  which  the  accused  now  is,  and  then 
was,  rector,  or  by  any  three  presbyters  of  the  diocese  entitled  to  seats  in  the  convention 


14         TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

of  this  diocese,  or  from  "  public  rumor,  as  contemplated  by  section  2,  of  canon  37,"  of 
the  general  convention,  that  the  respondent  was  under  imputation  of  having  been  guilty 
of  any  offence  or  misconduct  for  which  he  was  liable  to  trial. 

Fifth  Exception — That  the  respondent  is  not  charged  in  and  by  said  alleged  present- 
ment or  either  of  the  charges  and  specifications  therein  contained,  with  any  offence  or 
misconduct,  for  which  he  is  liable  to  be  tried  under  the  canons  of  the  general  convention 
and  of  the  diocese  of  Illinois. 

Chakles  Edward  Cheney. 

The  citation  has  not  been  read.    It  reads  as  follows  : 

CITATION. 

CniGAGO,  Diocese  of  Illinois.— To  iJie  Rev.  Charles  Edward  Cheney,  Rector  of  Chrut 
Church,  Chicago:  The  commission  of  three  persons,  two  of  whom  are  presbyters,  whom 
I  appointed,  acting  according  to  canon  20  of  the  diocese  of  Illinois,  viz.  : 

The  Rev.  George  F.  Cushman,  D.  D.,  rector  of  the  Churchof  the  Redeemer,  Princeton; 
the  Richard  F.  Sweet,  B.  D.,  rector  of  the  Church  of  the  Epiphany,  Chicago  ;  Hon.  Lu' 
cius  B.  Otis,  Chicago,  to  examine  the  offence  and  misconduct  for  which  I  consider  you 
liable  to  be  tried,  and  that  the  interest  of  the  church  requires  an  investigation — have 
found,  in  their  opinion,  sufficient  grounds  for  a  presentment,  and  have  accordingly  pre- 
sented you  for  trial. 

I,  therefore,  the  bishop  of  the  diocese  of  Illinois,  do  herewith  serve  upon  you  a  certi- 
fied copy  of  said  presentment,  by  the  hands  of  Rev.  John  Harris  Knowles,  presbyter, 
canon  of  the  cathedral,  acting  as  mj'  commissary  for  this  purpose. 

And  I  do,  by  these  presents,  cite  you,  the  Rev.  Charles  Edward  Cheney,  to  appear 
and  answer  thereto  before  a  court  which  shall  be  duly  organized  and  convened,  on  Wed- 
nesday, July  2lst  next,  in  the  chapel  of  the  cathedral  of  Sts.  Peter  and  Paul,  on  the 
corner  of  Washington  and  Peoria  streets,  in  the  city  of  Chicago,  at  10  o'clock  in  the 
morning. 

And  in  pursuance  with  section  3  of  canon  20  of  the  diocese  of  Illinois.  I  hereby  furnish 
you  a  list  of  eight  Presbyters  entitled  to  seats  in  the  convention.  From  which  list  you 
shall  select  not  less  than  three,  nor  more  than  five,  who  shall  be  assessors  to  try  the 
facts  in  issue. 

And  if  within  twelve  days  of  the  date  of  this  notice  and  citation  being  served  upon  you, 
you  shall  fail  by  neglect  or  refusal  to  make  such  selection,  and  to  notifj'  me  of  the  names 
of  the  presbyters  thus  chosen,  then  and  in  that  event  shall  the  standing  committee  se- 
lect for  you  and  the  presbyters  thus  selected  shall  be  the  assessors  in  the  case,  the  same 
as  ifselected  by  yourself. 

List  ofPresbyteks.— Rev.  Cornelius  T.  Abbott,  rector  of  St.  Paul's  church,  Alton,  and 
and  rural  dean  ;  Rev.  Thos.  N.  Benedict,  minister  of  St.  Luke's  church,  Wyoming,  P.  O., 
Robin's  Nest ;  Rev.  John  Benson,  rector  of  St.  John's  church,  Peoria;  Rev.  Fred.  W.  Boyd, 
D.  D.,  rector  of  Grace  church,  Galesburg  ;  Rev.  Samuel  Chase,  D.  D.,  rural  dean,  vice 
President  Jubilee  College,  Rector  of  Christ  Church,  Robin's  Nest  ;  Rev.  Sidney  Cor- 
bett,  B.  D.,  rector  of  St.  John's  church,  Quincy,  rural  dean.  Rev.  Henry  N.  Pierce,  D. 
D.,  rector  of  St.  Paul's  church,  Springfield,  rural  dean;  Rev.  A.  W.  Snyder,  rector  of 
Calvary  church,  Chicago. 

Should  you,  the  accused,  desire  any  witness  or  witnesses  to  be  summoned  by  such  au- 
thority as  the  bishop  may  be  able  to  exert,  I  will  issue  suitable  summons  on  being  fur- 
nished with  the  name  or  names. 

Given  under  my  hand  and  Episcopal  seal,  this  21st  day  of  June,  A.  D.,  1869  ;  and  in  the 
eighteenth  year  of  my  consecration.  Henry  J.  Wuitehouse, 

Bishop  of  Illinois. 

Mr.  Fuller  then  proceeded  to  argue  in  support  of  the  exceptions.  He  said  that  ex- 
amination would  disclose  that  the  reverend  gentlemen  before  him  had  no  jurisdiction 
whatever  to  proceed  to  try  the  Respondent.  The  commission,  the  citation  and  the  pre- 
sentment all  showed  that  such  was  the  fact. 

Nothing  was  intended  in  fiivor  of  courts  of  limited  jurisdiction.  Their  jurisdiction 
must  be  shown  aflarmatively  upon  the  face  of  the  papers.  So  far  from  that  being  so 
here,  the  presentment  showed  nothing  as  to  how  it  was  found  and  the  citation  and  com- 
mission showed  affirmatively  that  the  proceedings  were  contrary  to  the  canon.  That 
was  the  end  of  this  ease. 

By  the*6th  article  of  the  constitution  of  the  General  Convention  the  mode  of  trying 
presbyters  was  left  to  the  diocesan  convention^  exclusively.  The  diocese  of  Illinois  had 
acted  upon  the  question  and  defined  in  the  1st  section  of  the  20th  canon,  that  proceed- 


TRIAL   OF    REV.    CHARLES    EDWARD    CHENEY.  15 

ings  could  only  be  instituted  -wlien  the  Bishop  had  reason  to  believe  upon  information 
given  by  three  presbyters,  a  major  part  of  the  vestry  of  tlie  presbyter's  parish  or  "  public 
rumor,"  as  contemplated  by  Section  2,  General  Canon  37,  an ofl'ence had  been  committed 
by  a  presbyter. 

The  citation,  commission  and  presentment  all  showed  that  these  proceedings  were  not 
instituted  on  these  grounds  or  either  of  them. 

Whatever  the  powers  of  the  Bishop  might  be,  they  were  limited  and  controlled  by 
the  canons  of  the  church.  He  must  bow  to  law  as  well  as  others.  The  limitation 
here  was  obvious,  the  identical  point  had  been  so  ruled  by  Chief  Justice  Wilson  in 
Hagcr's  case,  which  was  commended  by  the  Bishop  in  his  annual  address  in  1863  as  a  col- 
lection of  "  vahiahh  ecclesiastical  precedents. ''''  Hoffman  had  been  cited  to  the  contrary,  but 
Hoffman  was  only  treating  of  whether  the  canon  gave  Bishops  any  power.  He  thought 
not,  but  he  delivered  himself  of  no  opinion  as  to  whether  a  canon  might  not  restrict  a 
bishop. 

Again,  by  these  papers  the  bishop  claimed  to  be  proceeding  under  the  20th  canon. 

Judge  Otis — Only  in  respect  to  the  appointment  of  the  assessors. 

Mr.  Fuller — Oh,  my  learned  friend,  that  will  never  do. 

Judge  Otis — Well,  read. 

Mr.  Fuller — I  will  read. 

Judge  Otis— I  mean  the  citation. 

Mr.  Fuller  read  the  first  clause  and  then  said  :  Does  not  that  assert  the  appointment 
according  to  the  canon  ? 

Judge  Otis— Certainly.    That  is  what  I  said. 

Mr.  Fuller — Then  can  there  be  an  appointment  according  to  that  canon,  except  the 
bishop  has  reason  to  act  upon  one  of  those  three  causes  or  sources  ? 

Judge  Otis — Certainly  not. 

Mr.  Fuller — That  ends  the  argument.  If  the  bishop  were  proceeding  under  that 
canon,  it  binds  him  of  course,  and  as  he  has  not  proceeded  as  there  provided,  the  proceed- 
ings are  void.  Mr.  Fuller  then  continued  :  This  is  a  court  (as  I  read  from  the  bishop's 
letter  this  morning — a  good  authority — but  even  without  that  authority  there  can  be  no 
doubt)  of  special  creation  and  limited  jurisdiction.  What  is  the  rule  with  regard  to 
courts  of  that  character?  That  nothing  shall  be  intended  to  be  within  the  jurisdiction 
of  such  a  court  unless  it  is  expressly  alleged.  That  is  the  rule.  So  that  in  order  for  this 
court  to  have  jurisdiction  in  the  premises  as  an  ecclesiastical  court  the  facts  which  go  to 
make  up  the  jurisdiction  must  be  alleged.  Further,  if  they  are  not  alleged,  the  pre- 
sumption even  does  not  obtain  that  they  exist ;  but  the  presumption  is  that  that  which 
is  not  alleged,  does  not  exist.  Now,  if  that  be  so,  go  back  a  moment,  and  if  the  ap- 
pointment of  the  commission  is  under  the  20th  canon,  and  if  it  appear  as  it  does  from 
the  citation  appear,  that  those  three  gentlemen  were  not  apjjointed  upon  information 
so  given,  or  upon  the  public  rumor  contemplated,  then  it  folloM's  that  the  commission 
and  presentment  are  void,  and  the  court  has  no  jurisdiction  in  the  premises.  And  even 
if  we  allow  (a  dangerous  concession  to  make,  but  which  I  make  for  the  sake  of  the  ar- 
gument) that  the  bishop,  by  virtue  of  his  visitatorial  power,  or  whatever  derivation  of 
powers  my  friend  on  the  other  side  may  choose  to  refer  it  to,  has  the  power  to  put  his 
presbyters  on  trial,  he  does  not  assume  to  do  so  in  this  instance,  but  on  the  contrary, 
all  the  papers  state,  and  it  is  a  fact,  as  he  says,  that  he  is  proceeding  under  the  20th 
canon.  Now  let  us  examine  the  second  and  the  third  exceptions,  and  the  fourth  too,  for 
that  matter,  (for  they  can  be  considered  together).  They  assert  that  the  bishop  did  not 
have  reason  to  believe  (not  as  a  question  of  fact  for  you  to  try  ;  not  at  all,  but  because 
the  law  implies  he  did  not  have  reason  to  believe).  Why  ?  Because  he  did  not  state 
that  he  did.  Why  is  lie  required  to  state  it  ?  Because  proceeding  under  that  canon, 
the  law  in  regard  to  courts  of  special  creation  and  limited  jurisdiction  applies,  and  if  it 
be  not  averred  it  is  presumed  not  to  exist — the  court  has  no  jurisdiction — the  case  is  out 
of  it. 


16        TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

So  the  foui'th  exception  asserts  the  same  objection,  for  it  only  presents  it  in  a  different 
form.  I  should  have  mentioned  the  third,  which  is,  that  the  accused  is  not  under  impu- 
tation. Why  is  that  asserted  ?  Because  as  a  matter  of  law — upon  the  face  of  the  papers 
■ — on  the  face  of  the  presentment,  the  necessary  jurisdictional  facts  are  nowhere  stated 
from  which  it  can  he  inferred  that  he  is  under  imputation. 

And  the  fourth  exception  states  the  objection  in  perhaps  a  more  obvious  form,  that 
the  "  presentment  and  citation  do  not  affirmatively  show  that  the  bishop  Lud  reason  to 
believe,"  &c.,  and  was  so  proceeding.  Now  let  me  in  that  connection,  though  at  the 
risk  of  Judge  Otis'  objection  of  this  morning,  read  (it  is  not  exactly  a  learned  docu- 
ment, although  it  was  written  by  a  learned  man)  the  decision  or  opinion  in  regard  to  a 
navy  court-martial  case,  of  the  Hon.  Felix  Grundy,  the  same  one  I  read  this  morning. 
There  could  be  no  better  illustration  of  the  principle  for  which  I  contend  than  this  deci- 
eion  : 

"  Judges  advocate  of  courts-martial  are  required  to  be  sworn,  and  when  the  proceed- 
ings in  such  court  do  not  show  that  they  were,  it  may  be  properly  considered  that  the 
fact  docs  not  exist,  and  that  they  were  not  sworn,  and  that  therefore  the  proceedings 
"Were  irregular  and  void." 

Mr.  FiiUer  elaborated  his  views  at  some  length. 

The  fifth  exception  stated  that  no  offence  was  alleged. 

This  was  true  if  the  position  first  laid  down  was  well  taken  because  there  could  be  no 
offence  except  upon  the  three  grounds  mentioned.  It  was  also  true  if  these  proceedings 
were  assumed  to  be  predicated  upon  "public  rumor"  as  contemplated,  and  it  was  not 
contended  there  had  been  any  complaint  by  three  presbyters  or  the  vestry  of  Christ 
church.  The  general  canon  defined  oflences ;  the  Diocesan  canon  did  not.  The  present- 
ment here  preferred  three  charges.  The  first  was  violation  of  the  constitution ;  the 
third,  violation  of  the  ordination  vows ;  the  second  was  violation  of  the  subscription  to 
the  declaration  which  was  either  no  offence  at  all  or  fell  within  one  of  the  other  two. 
Up  to  1868,  neither  violation  of  the  constitution  nor  of  the  ordination  vows  was  an  of- 
fence that  could  be  prosecuted  upon  "  public  rumor"  and  the  diocesan  canon  referred  as 
to  jDublic  rumor  to  the  general  canons,  as  they  stood  up  to  1868,  an  d  would  have  to  be 
amended  to  authorize  proceedings  on  public  rumor  as  contemplated  by  any  amendment 
since  that  time. 

But  counsel  denied  that  the  canon  had  been  amended.  By  the  general  canons  when 
canons  were  amended,  the  committee  on  canons  after  the  adjoui'nment  of  the  General 
Convention  were  charged  with  the  duty  of  examining,  comparing  and  arranging  the 
amendments,  and  they  were  then  printed  in  the  journal.  Until  that  was  done  there  was 
no  official  publication  of  the  amendments  and  no  one  was  bound  to  take  notice  thereof, 
unless  perhaps  if  the  amendments  themselves  provided  for  taking  effect  earlier,  which  was 
not  pretended  here.  The  journal  of  the  General  Convention  of  1868  had  never  been  pub- 
lished and  consequently  no  amended  canon  as  amended  had  gone  into  eflect. 

Judge  Otis  in  reply  insisted  that  none  of  the  papers  need  show  on  what  kind  of  infor- 
mation the  Bishop  proceeded.    The  Commission  need  not  set  out  the  facts. 

Now,  the  accused  is  not  to  know  anything  about  the  Bishop's  sources  of  information. 
■  He  is  not  to  know  whether  the  presentment  was  made  upon  a  complaint  of  Presbj'ters, 
or  whether  by  a  majority  of  the  vesti-y,  or  from  public  rumor.  We  know  that  there  was 
an  abundance  of  public  rumor  afloat,  but  what  the  Bishop  acted  uj^on  in  making  our  ap- 
pointment, he  is  not  required  to  state  to  us  by  any  canon.  I  do  not  know  of  any  canon 
requiring  it.  I  do  not  know  that  we  had  any  right  to  ask  him,  and  I  am  equally  confi- 
dent that  the  accused  had  no  right  to  ask  him. 

The  Bishop  says  :  "  I  proceed  under  canon  20,  and  appoint  the  commission."  I  claim, 
then,  that  if  we  construe  that  he  proceeds  under  canon  20,  we  have  a  right  to  presume 
that  he  proceeds  all  along  under  canon  20,  and  under  the  terms  of  canon  20,  so  far  as  re- 
quires it  to  be  said. 

Another  point  is  made  in  respect  to  the  amendment.    The  question  is  not  whether 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.        17 

this  IS  a  genuine  book  or  entitled  to  be  received  in  evidence  before  the  court,  and  I  do 
not  propose  to  present  it  at  present,  but  I  do  propose  to  suppose,  for  the  sake  of  argu- 
ment in  this  preliminary  question,  that  this  is  the  law.  We  have  not  presented  Mr. 
Cheney  liere  on  a  canon  that  has  been  repealed.  That  would  have  been  a  farce.  We 
would  have  no  right  to  do  so.  It  would  be  very  easy  for  cither  side  to  make  the  neces- 
sary proof  to  quash  such  a  proceeding.  We  have  proceeded  on  law  supposed  to  exist, 
therefore  ;  according  to  law  as  left  at  the  close  of  the  last  general  convention,  of  neces- 
sity. 

Now  the  legislation  of  the  last  general  convention  is  the  supreme  law  of  the  Church — 
It  is  a  law  for  every  diocese.  Then,  as  to  the  facts  the  Bishop  had  before  him  to  make 
the  citation,  accused  has  no  mare  right  to  know  these  than  the  person  again-st  whom  a 
bill  is  found  by  a  grand  jury.  1  do  not  wish  to  spend  any  more  time  on  these  prelimina- 
ries, and  only  Want  to  work  for  the  ends  of  justice  in  an  Ecclesiastical  court.  That  is  all 
I  think  we  can  bo  held  up  to.  Reasonable  rules  we  are  willing  to  abide  by,  aud  that 
is  all. 

Mr.  FuiXBR— The  positions  taken  on  behalf  of  the  accused  are  not  technical.  They 
are  substantial  and  my  friend's  argument  shows  it,  for  he  has  not  answered  them. 

The  papers  should  sliow  the  grounds  upon  which  the  Bishop  proceeded.  Do  they  1 
Not  at  all,  and  my  friend  has  really  compelled  me  to  say  what  I  did  not  say  before,  and 
tliat  is,  that  I  was  very  much  astonished  the  Bishop  should  have  said  what  he  did  and 
called  it  a  commission  ;  because,  if  the  Bishop  had  reason  to  believe  on  information  given 
by  tliree  Presbyters,  or  by  a  majority  of  the  vestry,  or  upon  public  rumor,  as  contem- 
plated by  the  'dlth  canon — that  my  client  was  under  imputation,  then  all  that  his  com- 
mission would  need  to  fulfill  the  law,  even  in  its  technical  aspect,  was  simply  that  the 
Bishop,  having  reason  to  believe,  upon  one  of  those  grounds,  had  thereby  appointed 
those  to  whom  these  presents  came. 

My  friend  says  we  complained  because  he  did  not  say  more.  The  complaint  is,  that  he 
said  a  good  deal  too  much,  and  yet  not  enough;  because  the  commission  should  state  that 
it  is  issued  upon  one  of  those  three  grounds,  and  the  citation  should  state  it,  and  the. 
presentment  should  state  it. 

Nuvr,  if  I  stood  simpLy  here,  and  gave  no  reason  why,  but  stuck  upon  the  canon,  as 
my  friend  did  this  forenoon,  there  might  be  cause  to  complain  ;  but  I  go  further  and 
show  to  the  court  tliat  if  these  proceedings  were  instituted  and  have  gone  thus  far  upoa 
the  Bishop's  reason  to  believe,  derived  from  public  rumors  then  I  say — and  my  friemdl 
has  not  answered  the  position — that  there  is  ho  oQence  before  the  court,  and  therefore' 
there  can  be  no  trial.    That  is  the  point. 

And  I  say,  taking  the  diocesan  canon  as  it  is,  that  a  clergyman  cannot  be  tried  ia  this 
diocese  upon  proceedings  instituted  on  public  rumor,  for  a  viohxtion  of  his  ordinMLon 
vows,  for  instance.  I  do  not  say  that  he  cannot  be  tried  at  all.  I  particularly  stated 
that  I  thought  he  could,  but  he  cannot  be  tried  for  that  upon  a  presentment  tojadc 
by  a  commission  authorized  by  the  bishop,  the  bishop  proceeding  upon  public  rumor 
alone. 

I  consider  the  charge  a  very  serious  one.  I  consider  that  our  diocesan  convention, 
even  if  acting  now  and  here,  ought  to  hesitate  before  it  authorizes  the  soleiEai  oirence 
of  a  violation  of  the  ordination  vow  to  be  tried  by  proceedings  instituted  upon  public 
rumor. 

Public  rumor  was  intended  to  suggest  or  require  proceedings  when  that  rumor  related 
to  immorality  and  to  conduct  unbecoming  a  minister  of  the  church  of  Christ.  It  never 
was  intended  or  thought,  up  to  this  time,  that  it  would  be  applied  to  that  class  of  iiyu- 
ries  to  the  church  that  may  be  supposed  to  be  involved  in  technical  violation  of  the 
ordination  vows,  but  yet,  that  is,  perhaps  one  of  the  most  solemn  charges  that  can  be 
made  against  a  minister,  under  which  my  client,  so  far  as  this  presentment  can  place 
him  under  imputation,  is  placed.  But  it  has  placed  him  under  an  imputation  and  in 
proportion  to  the  gravity  of  the  charge  should  be  the  care  of  the  court  to  ascertain 
2 


18        TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

whether  such  offence  is  presentable  under  the  canon.  The  offence  being  of  this  kind, 
ought  to  be  proceeded  for  only  on  complaint  of  the  vestry  or  three  presbyters.  It  may 
be  a  vestry  would  not  complain.  A  popular  minister,  you  might  say,  might  have  such 
favor  with  his  vestry  that  a  majority  would  not  initiate  proceedings.  Grant  it,  if  you 
please.  Granting  that  they  would  be  influenced  by  love  for  their  pastor — and  I  do  grant 
that  the  vestry  of  my  client's  church  will  most  necessarily  be  influenced  by  love  for 
their  pastor  who  has  brought  them  up  from  five  or  six  communicants  to  300  ;  from  a 
Sunday  school  numbering,  30  to  700  and  from  a  frame  building  worth  less  than  $1000,  to 
one  of  stone  of  very  great  value — but  three  presbyters,  if  the  court  please,  can  be  found 
vminfluenced  by  any  such  considerations,  influenced  only  by  the  duty  they  owe  to  the 
church,  and  they  could  initiate  proceedings  ;  could  give  the  bishop  that  legal,  and  valid, 
and  substantial  reason  to  believe  the  thing  which  all  bishops  should  be  loth  and  unwill- 
ing to  believe,  that  the  accused  actually  rests  under  the  imputation  of  having  commit- 
ted an  offence  or  misconduct. 

My  learned  friend  has  not  answered  me  when  I  ask  him  whether  the  jurisdiction  of 
this  court,  of  special  creation  and  limited  jurisdiction,  has  not  got  to  be  shown  upon 
the  face  of  the  proceedings  ;  and  I  say  that  these  proceedings  do  not  show  jurisdiction 
upon  their  face.    On  the  contrary  they  show  the  want  of  it. 

There  is  the  point,  and  it  is  a  point  that  is  worthy  of  consideration.  So,  also,  the 
point  with  regard  to  whether  the  canon  has  been  duly  published — because  persons  are 
not  obliged  to  take  notice  of  laws  that  are  not,  or  that  have  not  gonn  into  effect,  unless 
there  was  something  done  at  the  time  of  the  passage  of  the  law,  to  put  it  in  operation. 
Tet  he  says  nothing  about  it. 

Judge  Otis— I  said,  when  I  wanted  to  use  this  canon  in  evidence,  I  would  use  it. 

Mr.  Fuller — It  is  not  a  question  of  evidence.  There  is  no  offense  if  there  be  no 
amended  canon,  and  there  is  no  proof  before  the  court  that  the  amended  canon  has  ever 
gone  into  effect. 

My  friend  contented  himself,  at  one  time,  with  falling  back  upon  the  letter  of  the 
canon.  Now  he  says  that  it  is  enough  that  the  bishop  authorized  the  commission  to 
act.  But  the  bishop  claims  to  be  proceeding  under  the  canon,  and  therefore  when  the 
papers  do  affirmatively  show  a  want  of  jurisdiction,  and  when  in  the  absence  of  an 
averment  of  jurisdictional  facts,  the  law  is  that  the  presumption  is  of  want  of  jurisdic- 
tion, I  say  that  these  exceptions  are  well  taken,  and  that,  as  the  papers  stand  at  pres- 
ent, the  court  cannot  take  cognizance  of  the  presentment. 

RETIREMENT  OF  THE  COURT. 
The  court  then  retired  to  deliberate.  * 

RE-ASSEMBLING. 

The  court  having  returned  after  an  absence  of  15  minutes,  the  president  announced 
that  its  decision  was  to  decline  to  receive  the  objections,  and  ruled  them  out. 

Mr.  Thompson  said :  I  rise  to  make  a  suggestion.  We  had  supposed  the  session 
would  be  from  10  o'clock  without  any  intermission  until  2  or  3  o'clock  in  the  afternoon. 
I  am  informed  by  my  associate,  Mr.  Fuller,  that  he  has  a  sick  child  at  home,  and  it  is 
now  somewhat  after  4  o'clock.  I  would  suggest  that  it  would  be  very  acceptable  to 
adjourn  until  to-morrow  morning. 

Judge  Otis— I  have  been  trying  all  day  to  get  to  the  question  "guilty,"  or  "not 
guilty."  I  must  insist  that  we  must  reach  that  point.  I  believe  there  can  be  but  one 
plea.  We  have  disposed  of  three  or  four  objections.  I  ask  that  the  accused  plead 
guilty  or  not  guilty  before  we  adjourn. 

Mr  Fuller  inquired  if  he  was  to  understand  that  the  court  refused  to  receive  the 
objections. 

The  President  said  they  were  received  and  considered,  and  rejected.  The  proper 
point  now  would  be,  as  suggested^  by  the  judge  advocate,  that  the  plea  be  entered.    I 


TRIAL   OF    llEV.    CHARLES   EDWARD    CHENEY.  19 

would  therefore  call  upon  the  Rev.  Charles  E.  Cheney.  You  have  heard  the  charges  ; 
do  you  plead  guilty  or  not  guilty  ? 

Mr.  Fuller— Mr.  President,  the  judge  advocate  has  made  a  suggestion  ;  but  there 
are  certain  exceptions  to  the  presentment  which  should  now  be  taken  up.  Mr.  Thomp- 
son will  present  them. 

Judge  Otis — I  supposed  they  were  embraced  in  your  written  paper. 

Mr.  FuLLEK — No  sir,  we  take  them  in  order. 

Mr.  Thompson — We  present  to  the  charges  and  specifications  some  exceptions,  which 
are  reduced  to  writing.    They  are  as  follows  : 

Diocese  of  Illinois  —  In  the  Matter  of  the  Presentment  of  George  F.  Cushnuin,  D.  D., 

Richard  F.  8weet,  B.  D..  and  L.  B.  Otis  vs.  Rev.  Charles  Edward  Cheney. 

To  (he  Rev.  the  Asxessors.  —  The  exceptions  of  Charles  Edward  Cheney,  presbyter  of 
said  diocese,  and  rector  of  Christ  church  in  the  city  of  Chicago,  in  said  diocese,  to  the 
presentment  of  Rev.  George  F.  Cushman,  D.  D.,  Rev.  Richard  F.  Sweet,  B.  D.,  and 
Hon.  L.  B.  Otis,  said  respondent  hereby  expressly  reserving  his  rights  under  the  excep- 
tions heretofore  taken  to  the  jurisdiction  of  this  coiul,  allege  that  the  said  presentment 
and  the  charges  and  specifications  therein  contained  are  informal  and  insuflicient  in  this : 

Fir.'<t  Ezc'ption  —  That  charge  1  of  said  alleged  presentment  and  the  specifications 
thereunder  are  insufficient,  as  is  each  of  said  specifications,  in  this  : 

1.  I'hat  it  does  not  appear  from  specification  1  of  said  charge  what  alterations  the 
respondent  is  therein  alleged  to  have  intentionally  made  in  the  use  of  the  Book  of  Com- 
mon Prayer,  and  offices  therein  set  forth,  nor  is  it  therein  averred  with  reasonable  cer- 
tainty, at  what  time  nor  under  what  circumstances  such  alterations,  if  any,  were  made. 

3  That  specification  3  of  said  charge  does  not  aver  with  reasonable  certainty  at 
what  time  or  times  the  respondent  omitted  to  use  the  word  "  regeneration,"  and  the 
word  "  regenerate,"  as  therein  alleged,  nor  under  what  circumstances. 

3.  That  specification  3  of  said  charge  does  not  aver  with  reasonable  certainty  at  what 
time  nor  under  what  circumstances  the  said  respondent  did  intentionally  neglect  and 
"  omit  to  use  the  office  set  forth  in  the  Book  of  Common  Prayer  in  manner  and  form  a.^ 
the  said  office  is  set  forth,  and  established  in  said  book,"  as  alleged  therein,  nor  does  it 
aver  with  reasonable  certainty  at  what  time  nor  under  what  circumstances  the  said  re- 
spondent omitted  the  word  "  regenerate  "  from  said  office  as  alleged. 

Second  Exception — That  charge  3,  of  the  presentment,  and  the  specifications  there- 
under are  insufficient,  as  is  each  of  said  specifications,  in  this  : 

1.  That  specification  1,  of  said  charge,  does  not  specify  what  material  alterations  and 
omissions  in  the  use  of  the  Book  of  Common  Prayer  and  offices  therein  set  forth  this 
respondent  is  charged  with  having  made,  nor  does  it  set  forth  with  reasonable  precision 
at  what  time  or  uiider  what  circumstances  such  alleged  alterations  or  omissions  were 
made. 

2.  That  specification  3  of  said  charge  does  not  specify  with  reasonable  certainty  the 
time  when  or  the  circumstances  under  which  this  respondent  did  purposely  omit  to 
read,  say,  or  use  the  word  "  regenerate  "  or  the  word  "regeneration  "  wherever  either 
of  said  words  occurred  in  said  office  or  order  for  the  ministration  of  public  baptism  of 
infants,  as  alleged  in  this  specification. 

3.  That  specification  3  of  said  charge  does  not  specify  with  reasonable  certainty  the 
time  when  nor  the  circumstances  under  which  the  word  "  regenerate  "  is  alleged  in  this 
specification  to  have  been  omitted  by  this  respondent  in  the  administration  of  the  sac- 
rament of  baptism  to  infants,  in  one  or  more  of  the  places  where  said  word  occurs,  in 
the  office  set  forth  for  that  purpose  in  the  book  of  common  prayer. 

Third  Exception — That  charge  3  of  said  presentment,  and  the  specifications  thereun- 
der, are  insufficient,  as  is  eachof  said  specifications  in  this  : 

1.  That  specification  1  of  said  charge  does  not  set  forth  what  material  alterations  and 
omissions  this  respondent  while  officiating  in  public  religious  services  in  Christ  church 
purposely  made  in  such  services  as  set  forth  aud  established  in  this  church  in  the  book 
commonly  called  the  Book  of  Common  Prayer,  as  alleged  in  said  specifications,  nor 
does  it  specify  with  reasonable  certainty  at  what  time  nor  under  what  circumstances  such 
alleged  alterations  and  omissions  were  made. 

3.  That  specification  3  of  said  charge  does  not  specify  with  reasonable  certainty  at 
what  time  nor  under  what  circumstances  this  respondent  did,  as  is  alleged  in  said  speci- 
fication, in  Christ  church,  in  the  city  of  Chicago,  in  said  diocese,  intentionally  adminis- 
ter the  sacrament  of  baptism  in  the  case  of  infants  without  using  the  word  "  regener- 
ate "  and  the  word  "  regeneration,"  as  said  words  occur  in  the  office  set  forth  and 
established  by  this  church  for  the  "  ministration  of  public  baptism  of  infants." 

3.  That  specification  3  of  said  charge  does  not  specify  with  reasonable  certainty 
when  this  respondent  did,  in  the  ministration  of  baptism  to  infants,  designedly  omit  to 


20         TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

use  the  word  "  regenerate  "  in  one  or  more  of  the  places  where  said  word  occurs  in  the 
office  set  forth  by  this  church  to  be  used  on  such  occasions,  as  alleged  in  said  specifica- 
tion. 

Fourth  Exception— Th^x  said  presentment  is  informal  and  insufficient  in  this,  that  the 
charges  therein  contained,  and  the  specifications  of  each  of  the  said  charges,  do  not, 
nor  does  either  of  them,  specify  with  reasonable  certainty  as  to  time,  place,  and  circum- 
stances the  alleged  otience  and  misconduct  with  which  the  respondent  is  attempted  to 
be  charged  therein. 

Fifth  Exception — That  the  said  charges  1,  2,  and  3  do  not,  nor  does  either  of  them,  set 
forth  any  offence  or  misconduct  for  which  this  respondent  is  liable  for  trial. 

Charles  Edward  Chekby. 

Mr.  Thompson  then  argued  that  the  first  charge  specified  no  oflTence.  The  article  of 
th3  constitution  alleged  to  be  violated  related  to  how  changes  of  the  prayer  book  might 
be  made  by  the  couvention  itself.  The  second  charge  alleged  violation  of  the  declara- 
tion of  conformity  prescribed  by  art.  7  and  was  no  ojfence. 

And  neither  one  of  the  specifications  under  eitker  of  the  charges  gave  time  and  circum- 
stances with  reasonable  precision.  He  read  from  Hoffman's  Law  of  the  Church,  p.  4(Jl, 
to  sustain  his  views.  Hoffman  stated  the  smallest  period  of  time  within  which  the  of- 
fence could  be  generally  laid  was  one  month  and  designated  averments  like  those  here  as 
absurdly  illegal. 

Mr.  FtTLLER — Will  the  Court  adjourn  now? 

Judge  Otis — I  can  say  all  I  have  to  say  in  a  few  moments. 

Mr.  Fuller— It  will  take  me  at  least  an  hour.     [Laughter.] 

ilr.  Thompson — We  consider  these  matters  of  vital  importance  and  would  like  an  op- 
portunity of  discussing  them. 

Mr.  FcLLER — I  wish  to  make  one  suggestion  so  the  entire  line  of  argument  may 
be  indicated.  Under  the  canon  the  accused  may  confess  the  charges  down  to  the  mo- 
ment of  taking  evidence.     How  can  he  safaly  do  this  under  specifications  like  these? 

Judge  Oris^iuall  I  proceed? 

The  Presiden'T— Proceed,  Sir. 

Judge  0ti3  said  that  Hoffman  stated  that  reasonable  latitude  should  be  allowed  and 
that  was  all  he  claimed  here.  The  place  was  specified  and  our  Canon  had  provided  no 
greater  definiteness  as  to  time. 

As  a  precedent,  Judge  Otis  read  the  presentment  against  Rev.  C.  C.  Tate,  of  Ohio. 

Mr.  Fuller — Was  that  ever  passed  on  by  any  court  ? 

Judge  Oris — It  was  not. 

Mr.  Fuller — No,  the  court  declined  to  take  jurisdiction.    [Laughter.] 

Judge  Otis  then  read  from  Hoffman  the  case  of  Rev.  Mr.  Ray  nor,  of  Connecticut,  who 
was  charged  with  habitually  committing  the  act  complained  of;  also  the  article  strik- 
en avX.  in  the  Onderdonk  case  for  want  of  definiteness.  I  think  the  presentment  cer- 
tainly is  definite  enough  for  all  purposes.  All  the  certainty  that  can  be  given  is  furn- 
ished. What  cannot  be  proven  is  not  stated  for  the  purpose  of  making  confusion,  which 
need  not  arise. 

We  have  not  charged  this  offence  with  having  been  committed  on  one  particular  Sun- 
day. In  such  a  case  it  might  have  been  an  accidental  omission  or  oversight,  or  a  mis- 
take. But  when  we  say  he  did  it  purposely,  and  continued  it  at  divers  times  during 
two  years,  covering  a  period  which  shows  it  is  intentional  and  habitual,  then  we  make 
out  what  amounts  to  an  offence.  We  want  to  make  our  allegations  with  sufficient  defi- 
niteness, so  that  the  accused  may  not  be  misled.  I  have  with  me  here  a  presentment 
drawn  in  the  diocese  of  Ohio,  an  old  diocese,  which  is  about  the  same,  and  one  drawn  in 
the  dioc£3e  of  Rhode  Island.  One  of  the  charges  in  that  is  drawn  in  the  same  way.  I 
have  said  all  I  desire  to  say  upon  this  presentment.  All  that  is  necessary  to  be  recited 
is  presented  there.    I  have  called  your  attention  to  various  authorities  as  precedents. 


TRIAL    OF    REV.    CHARLES    EDWARD    CHENEY.  21 

The  time  is  alleged  as  near  as  we  could  allege  it.     Being  a  habitual  act  it  is  not  neces- 
sary to  state  the  day.     I  believe  I  have  stated  all  I  desire  to  say  upon  that  point. 

Mr.  FcLi-KK — It  is  getting  late.     Is  it  desired  that  1  proceed? 

I  he  Prk-idbnt — You  may  proceed,  sir. 

Mr.  FubLKK — I  cannot  but  c.vpress  my  surprise  that  my  friend  should  endeavor  to 
justify  a  position  so  utterly  against  the  authority  of  his  favorite  HotTman,  by  present- 
ing to  this  court,  as  a  precedent  and  an  authority,  a  presentment  in  Ohio,  which,  when- 
ever it  comes  to  trial,  will  undoubtedly  be  quashed.  The  same  objection  pertains  to  it 
that  does  to  this,  except  that  it  is  a  little  better  than  this  one.  When  the  'case  in  which 
that  presentment  was  made  came  up  for  trial,  it  was  discovered  that  one  of  the  mem- 
bers of  the  court  was  ineligible,  and  so  it  subsided.  And  Judge  Otis  has  brought  in  an 
untried  presentment  to  justify  the  inaccuracy  of  this  document  by  his  supposition  that 
some  court  some  time,  to  be  organized  in  the  state  of  Ohio,  will  hold  that  document 
good.  .\s  we  have  got  ahead  of  that  court,  and  raised  our  objection  lirst,  we  hope  it  will 
be  considered,  and  we  may  then  furnish  a  precedent  to  the  slate  of  Ohio. 

.\.^ii;i:  iIj  ;ii4  h.'j  ii;.it  bjfo.-e  t'ue  oart  tUi  c;lebrated  Ouderdonic  case.  rhe9th 
article  was  stricken  out  because  indefinite  ;  and  Judge  Otis'  argument  is  that,  because  the 
court,  of  its  own  motion,  struck  that  article  out  for  indefiniteuess,  this  court  should  not 
strike  this  out  because  it  is  not  quite  so  inJ^-tinite  as  that  article  was  ! 

In  fact  this  precedent  is  in  favor  of  tlie  accused. 

Raynor's  case  is  not  in  point,  for  it  does  not  appear  what  the  language  of  the  present- 
ment was.  He  was  presented  however  for  being  in  the  habit  of  doing  so  and  so.  That  is 
not  the  allegation  here.  In  this  presentment  it  is  nowhere  alleged  that  the  Rev. 
Charles  E.  Cheney,  who  is  now  before  you  as  the  accused,  was  or  is  in  the  habit  of 
omitting  this  word.  If  my  friend  will  allege  that  my  client  is  in  the  habit,  why  that  I 
can  meet.  If  he  will  allege  that  he  did  it  on  any  certain  Sunday  of  any  certain  year,  I 
will  meet  him.  He  has  stated  to  the  court  himself,  I  believe,  that  it  was  the  universal 
practice,  or  required  by  canon  —  he  always  has  a  canon  —  that  a  register  of  baptisms 
should  be  kept.  We  have  kept  such  a  register.  That  suggestion  is  apposite  to  my  pur- 
pose. We  have  had  so  many  baptisms  of  infants  within  the  last  two  years,  we  should 
have  to  bring  witnesses  by  hundreds  here  to  disprove  the  facts  charged.  Am  I  to  be 
called  upon  to  bring  in  here  60J  witnesses  ?  I  have  at  least  a  right  to  prove  my  inno- 
cence ;  there  is  a  presumption  in  some  courts  in  favor  of  innocence,  but  I  have  never 
heard  that,  in  any  court,  a  man  is  to  be  cut  off  from  proving  his  innocence.  Now  then, 
charged  as  I  am  under  the  presentment,  I  have  got  to  summon  my  whole  congrega- 
tion in  order  to  meet  it.  I  say  it  is  unreasonable.  No  law  can  be  shown  for  it.  No 
precedent  can  be  found  for  it. 

The  counsel  cited  Waddilove's  Digest,  p.  8"iand  cases  ;  1  Chitty's  Crim.  Law,  237  ;  3 
Greenleaf  "s  Evidence,  sec.  471  ;  De  Hart  on  Military  Law,  p.  12.5  ;  and  Hoffman,  p.  4<)1,  and 
insisted  that  by  the  Civil,  Canon,  Military,  Criminal  and  Equity  Law,  this  present- 
ment  was  utterly  insufficient. 

The  Constitution  of  this  State  and  of  the  United  States  required  the  accused  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation  against  him,  and  that  requirement  was 
not  fulfilled  here. 

His  client  could  neither  admit  the  charge  nor  go  to  trial.  The  judgment  would  not 
bar  another  prosecution  for  the  same  cause. 

Judge  Otis — The  last  point  is  a  new  one.  I  did  not  refer  to  it ;  but  I  will  just  remark 
a  word  or  two.  It  is  certainly  a  strange  objection.  Who  would  think  of  presenting  a 
clergyman  in  such  a  case  ?  W'e  charge  that  six  months,  twelve  months,  and  two  years 
prior  to  this  presentment,  he  has  done  certain  things:  If  he  should  confess  the  specific 
charges,  he  could  not  be  presented  for  the  same  offence  during  the  same  time. 

If  any  specifications  are  defective,  they  can  be  dropped  ;  there  are  three  or  four  imder 
each  charge.    If  any  are  good,  of  course  the  presentment  stands..  If  the  court  think 


22         TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

any  of  them  are  too  general,  all  they  have  to  do  is  not  to  permit  us  to  offer  evidence  in 
their  support.  I  do  not  admit  that  any  of  the  charges  are  defective,  but  perfection  is 
not  to  be  expected. 

Mr.  Fuller — I  do  not  ask  that. 

The  President  declared  the  court  adjourned  until  half-past  nine  o'clock  to-morrow 
morning. 

SECOND    DAY  —  WEDNESDAY,  JULY  22d. 

At  half  past  9  o'clock  the  court  convened  pursuant  to  adjournment. 

The  Presiding  Officer — The  court  is  now  open  and  ready  to  proceed  with  the  bus- 
iness that  is  before  it. 

Mr.  Thompson — I  will  say  that  my  colleagues  have  not  made  their  appearance  here 
yet.    I  think  that  they  will  be  here  in  a  moment. 

After  a  few  minutes 

Mr.  Thompson  said  :    I  will  not  insist  upon  delay  if  the  court  desires  to  go  on. 

The  Presiding  Officer — I  will  announce  the  decision  of  the  court,  with  reference  to 
the  objections  which  were  alleged  by  the  counsel  against  the  presentment.  The  deci- 
sion of  the  court  is  that  they  are  overruled  —  that  the  presentment  is  sufficient  in  man- 
ner and  form. 

Mr.  Thompson — Can  the  court  assign  any  reason  for  that  decision? 

Judge  Otis— That  is  not  usual.  This  is  not  a  common' law  court  where  a  judge  would 
make  his  decision.    Here  he  should  not  be  asked  for  his  reasons. 

Mr.  Thompson — I  see,  so  far  as  I  have  noticed  ecclesiastical  trials,  the  judges  have 
brought  in  their  reasons,  and  these  have  usually  been  presented  in  writing  and  have 
bten  recorded.  In  this  case,  I  have  considered,  that  perhaps  it  might  be  proper  to  do 
so  ;  that  it  was  the  universal  practice. 

Judge  Otis — The  counsel,  probably,  have  read  the  Tyng  trial.  If  you  read  that,  you 
will  see  that  the  practice  that  was  followed  there  was  to  announce  the  decision  without 
any  reason. 

Mr.  Thompson — I  will  grant  that  is  so  in  immaterial  points,  as  upon  questions  of  eyi- 
dence  which  Avere  raised  ;  but  on  questions  which  go  to  the  foundation  of  the  trial,  the 
board  or  court  has  usually  expressed  an  opinion. 

Judge  Otis — I  now  ask  that  the  plea  be  called  for. 

The  Pke^iding  Officer  —  I  repeat  then,  the  order  that  the  court  made  yesterday  : 
Rev.  Charles  Edward  Cheney,  you  have  heard  the  charges  and  specifications, as  made. 
Do  you  plead  "guilty"  or  "not  guilty." 

Mr.  Thompson — Guilty  of  what,  may  it  please  the  court  ? 

The  Presiding  Officer— Of  the  matters  charged  in  the  presentment.  I  suppose 
the  answer  to  the  interrogation  should  be  simple  and  direct.  It  should  be  "  guilty  " 
or  "not  guilty,"  simply. 

Mr.  Thompson — As  for  the  specifications  that  have  been  presented  here,  they  are  so 
incongruous  and  imperfect  that  we  have  nothing  to  say  to  them. 

Judge  Otis — Then  I  ask  that  since  the  accused,  being  called  on,  makes  no  reply,  he 
should  be  entered  in  accordance  with  the  canon  as  pleading  "not  guilty,"  and  the  sec- 
retary will  so  note. 

Mr.  Thompson — May  it  please  the  court,  I  wish  to  apply  here,  though  I  suppose  that 
the  court  believes  it  is  time  to  proceed  to  the  trial  and  go  on  with  the  evidence,  and  de- 
sires to  do  so,  to  the  court  to  fix  the  time  and  place  for  the  trial  in  this  case.  As  it  was 
intimated  yesterday  by  my  associate,  we  take  the  position  that  the  thirty  days  mention- 
ed in  the  citation  under  the  general  provision  and  meaning  of  the  canons  is  a  time  set 
forth  and  prescribed  simply  for  the  purpose  of  a  return  to  the  citation,  and  the  organi- 
zation of  the  court,  and  that  after  that  is  done,  and  it  will  be  Claimed  here  that  it  is 
done,  that  then,  at  that  time  and  place,  the  time  and  place  of  trial  shall  be  determined 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.        23 

and  announced,  and  that  notice  of  that  time  and  place  of  meeting  must  be  served  upon 
us  at  least  thirty  days  before  it  is  to  take  place.  Canon  30,  Section  8,  provides  that  "  all 
citations  and  notices  in  any  ecclesiastical  proceeding,  whether  to  parties  or  witnesses, 
may  be  served  either  personally  or  by  leaving  copies  thereof  at  their  residences.  The 
time  between  the  day  of  service  and  the  day  of  appearance  shall  not  be  less  than  twenty 
days  over  and  above  the  ordinary  time  required  to  travel  to  the  place  of  appearance," 
and  this  applies  to  the  subpoenas  as  well  as  the  notices.  A  citation  is  the  process  in 
this  case.  It  is  the  writ,  it  is  the  summons  ;  it  is  the  process  which  brings  the  party 
into  court.  Yet  there  is  not  an  idea  or  element  of  time  or  place  of  trial  embodied.  I 
will  now  read  Section  4  of  the  same  canon  :  "A  written  notice  of  the  time  and  place 
appointed  for  the  trial" — it  does  not  say  "citation" — "a  written  notice  of  the  time  and 
place  appointed  for  the  trial  shall  be  served  on  the  accused,  and  also  on  one  of  the  pre- 
senters, at  least  thirty  days  previous  thereto,  and  advocates  or  proctors  shall  be  allowed 
on  either  side."  There  can  be  no  meaning  whatever — these  sections  cannot  be  recon- 
ciled in  any  other  way  except  to  take  this  eighth  section  as  referring  exclusively  to  the 
citation  which  brings  the  party  into  court,  and  the  fourth  section  prescribing  the  man- 
ner in  which  the  time  and  place  of  trial  shall  be  determined  and  notice  thereof  given. 

Now,  as  bearing  upon  that  rule,  I  will  read  from  Hoffman,  Avhich  is  not  a  new  book  in 
the  trial  of  this  case  so  far,  with  reference  to  the  practice  in  some  of  the  other  dioceses, 
difl'erent  authorities  upon  a  construction  of  particular  canons. 

Mk.  Thompson  then  read  from  Hoffman  as  to  the  practice  in  New  York,  Western 
New  York  and  Massachusetts  as  to  citations  and  notices  of  trial  and  continued  : 

These  two  sections  of  the  canon  cannot  be  construed  to  harmonize  in  any  other  way, 
and  that  certainly  agrees  with  what  the  demands  of  justice  and  fair  play  require.  Sup- 
posing that  there  had  been  canonical  disqualifications  to  certain  members  of  this  court, 
it  could  not  be  organized.  It  might  require  an  adjournment  for  that  purpose.  It  cer- 
tainly cannot  be  supposed  that  we  are  to  prepare  for  trial,  or  that  we  are  to  summon 
our  witnesses  until  there  is  an  issue  formed  in  the  case  and  the  court  is  properly  consti- 
tuted. This  canon  speaks,  also,  of  the  mode  in  which  depositions  shall  be  taken.  Will 
it  be  claimed  by  the  learned  counsel  on  the  other  side  that  we  can  go  into  depositions, 
and  send  a  commission  abroad  for  testimony,  which  we  have  a  right  to  do,  until  an  issue 
is  formed  in  the  case,  so  that  we  know  what  questions  to  ask  as  being  material  to  that 
issue  ?    Most  certainly  not. 

We  have  subpoenaed  no  witnesses  ;  we  did  not  know  whether  this  court  would  be  or- 
ganized. We  have  also  believed  that  if  it  was  organized,  a  time  and  place  of  trial  should 
be  fixed  and  should  have  at  least  the  twenty  days  canonical  notice  thereafter.  Such, 
then,  is  my  construction  of  this  canon,  and  I  submit  to  the  court  that  we  are  entitled  to 
have  the  time  and  place  of  the  trial  of  this  cause  now  fixed  and  that  it  shall  be  at  least 
twenty  days  distant,  "  over  and  above  the  ordinary  time  required  to  travel  to  the  place 
of  appearance." 

Judge  Otis — I  had  supposed  that,  some  time  or  other,  we  would  get  through  with  go- 
ing over  this  same  ground.  Part  of  these  objections  were  made  yesterday  and  overruled. 
Our  canons  provide  that  when  a  presentment  is  made  it  shall  be  served  upon  the  ac- 
cused, and  also  upon  one  of  the  presenters,  at  least  thirty  days  previous  thereto.  The 
copy  of  the  presentment  and  the  written  notice  or  citation  fixing  the  thirty  days,  which 
expired  yesterday,  go  together,  and  were  served  upon  the  accused.  We  have  the  evi- 
dence of  that  service,  if  it  is  necessary  to  produce  it.  Thirty  days  previous  to  the  as- 
sembling of  this  court  it  stated  in  the  citation  that  the  Bishop  will  issue  a  commission 
or  subpoenas  for  witnesses  as  the  party  requires.  The  Bishop  is  the  person  who  author- 
izes a  commission  to  issue,  not  the  court.  They  delay  making  application  to  the  Bishop 
for  a  commission.  They  do  not  ask  him  to  subpcsna  any  witnesses.  For  all  that  we 
know  they  do  not  want  any  witnesses  ;  and  now,  after  the  court  is  organized,  they  ap- 
ply to  it  for  a  continuance.  There  is  no  authority  for  that.  This  canon  expressly  provides 


24  TRIAL   OF    REV.    CHARLES   EDWARD    CHENEY. 

authority  to  grant  a  continuance  ;  it  is  with  the  Bishop.  They  should  apply  to  the 
Bishop  before  the  day  fixed  for  the  trial  and  give  their  reasons.  Section  2  reads  as  fol- 
lows: "The  Bishop,  or,  if  there  be  no  Bishop,  the  Standing  Committee,  may  postpone 
the  trial  from  time  to  time  for  cause  shown  or  when  justice  requires  it."  The  Bishop  is 
the  party  to  apply  to  before  the  assembling  of  the  court,  but  the  canon  provides,  Sec- 
tion 7,  that  "when  the  court  is  constituted  by  the  presence  of  the  requisite  number  of 
presbyters,  they  shall  receive  such  evidence  as  may  be  adduced  in  accordance  with  the 
provisions  of  this  canon,  and  having  deliberately  considered  the  same,"  shall  proceed  so 
aud  so.  There  is  no  authority  given  in  our  canons  for  this  motion  or  claim  that  tlicy  are 
entitled  to  this  time  after  the  expiration  of  the  thirty  days  ;  it  has  never  been  allowed  in 
this  diocese.  It  has  always  been  refused.  Our  own  construction  must  be  taken  as  the 
proper  one,  I  think — the  construction  that  has  been  put  upon  it  in  former  cases.  There 
ie  no  application  here  for  a  continuance  that  this  court  is  authorized  to  entertain,  and 
the  objections  taken  to  the  citation  and  time  and  place  of  trial,  were  disposed  of  yester- 
day.   I  ask  that  the  court  overrule  the  motion. 

Mr.  Thompson — I  do  not  like  to  complain.  "We  certainly  have  not  manifested  a  dis- 
position to  complain  thus  far,  but  we  have  no  preparations  made  to  go  into  a  trial  of 
this  case  at  this  time.  When  I  first  got  up,  I  attempted  to  present  to  the  court  my  con- 
struction of  this  canon  with  reference  to  the  appointment  of  the  time  and  place  for  trial. 
I  urged  it  as  a  matter  of  fairness  to  the  accused.  I  urged  it  as  being  established  by  anal- 
ogy with  the  canonical  provisions  of  other  dioceses,  and  as  the  only  fair  interpretation 
of  our  own  canon ;  and  I  insist  upon  that  interpretation  being  put  upon  it.  I  suppose, 
when  the  canon  says  the  Bishop  may  grant  so  and  so,  it  means  that  where  a  certain 
presbyter  is  sitting  in  the  place  of  the  Bishop  he  steps  into  his  shoes  with  reference  to 
those  powers  as  well  as  many  others.  I  do  think,  may  it  please  the  court,  that  we  are 
entitled  to  some  little  consideration,  and  to  some  few  rights  in  this  body.  We  made  our 
complaints  yesterday  in  the  utmost  good  faith.  When  this  citation  was  first  served 
upon  Mr.  Cheney,  before  I  was  retained  in  the  case,  his  counsel  (Mr.  Fuller)  wrote  a  let- 
ter to  the  Bishop,  in  the  utmost  kindness,  suggesting  some  plan  by  which  a  fair  and  ac- 
ceptable court  could  be  constituted  and  organized  for  the  purpose  of  a  trial  in  this 
case.  The  Bishop  replied,  in  short  to  that,  refusing  all.  arrangements  which  might  lead 
to  that  result.  When  the  time  came  for  the  selection  of  the  presbyters,  we  found  that 
we  could  make  no  selection  which  would  in  our  estimation  constitute  a  court  with 
which  we  would  be  satisfied.  We  hence  paid  no  attention  to  that.  When  this  court — 
these  presbyters — convened  here  yesterday,  we  presented  our  objections  first  to  the  ju- 
risdiction of  the  court.  We  claimed  that  it  was  not  properly  set  in  motion  ;  We  claim- 
ed that,  by  the  canons,  it  could  not  be  set  in  motion  except  in  one  of  three  ditferent 
ways,  which  it  was  not  pretended  on  the  face  of  the  papers  had  been  complied  with. 
We  urged  that  point,  and  we  also  urged  that  we  had  a  right  to  come  in  here  and  ascer- 
tain whether  the  presbyters  were  qualified,  disinterested  parties,  who  would  constitute 
a  proper  court.  We  claimed  the  right  to  question  them,  which  they  refused.  We  then 
filed  our  objections  here.  We  cited  all  the  old  rules  of  the  common  law,  which  tlie 
lawyers  have  been  governed  by  for  many  years  past  in  the  practice  of  the  law,  those 
rules  which  have  been  adopted  in  ecclesiastical  affairs,  those  rules  which  have  come 
down  to  us  enriched  with  all  the  wisdom  of  ages  and  adorned  the  brows  of  the  judges 
and  priests  of  the  land— we  brought  them  here  and  they  were  lightly  spoken  of  by  the 
counsel  on  the  other  side,  and  it  seems  that  they  were  entirely  ignored  by  the  court. 
Upon  each  and  every  one  of  the  objections  which  we  filed  here— filed  in  good  faith — be- 
lieving that  they  would  be  entertained  and  sustained  by  the  court,  judging  from  experi- 
ence in  presenting  such  cases  in  courts  of  law.  But  it  seems  that  the  court  entirely  dis- 
regarded them,  one  and  all,  and  that  in  a  very  summary  manner  by  a  simple  "no,"  and 
that  was  all.  When  it  came  down  to  the  point  where  the  court  might  he  considered  as 
having  been  organized,  to  a  certain  extent,  a  sort  of  quasi  court,  and  the  specifications 


TRIAL   OF    REV.    CHARLES    EDWARD   CHENEY.  25 

and  charges  were  presented,  we  presented  last  night  our  objections  to  them,  relying 
entirely  upon  the  correctness  of  our  position.  We  presented  them  calmly,  and  candid- 
ly, and  as  the  time  allowed  us  to  do.  We  had  the  utmost  contidence — we  did  not  have 
the  first  scintilla  of  a  belief  that  these  exceptions  would  be  overruled.  We  thought  the 
law  of  this  diocese,  the  ecclesiastical  law  of  this  court,  would  cut  some  figure,  even  at 
that  stage  of  the  proceedings.  Yet  we  come  in  here  this  morning,  and  we  are  met  with 
the  same  cold  "  no  "  again.  Now,  may  it  please  the  court,  are  we  not  to  have  any  sort 
of  fairness  here  ? 

Judge  Otis — I  must  call  the  gentleman  to  order.    He  is  abusing  the  court. 

Mr.  Thompson — ^^Not  at  all ;   I  am  simply  asking  a  question. 

Judge  Otis — This  speaking  of  "cold  noes"  is  a  reflection.  Of  course  tlie  court  can 
protect  itself,  and  it  is  not  for  me  to  interfere.    Still,  I  must  call  you  to  order. 

Mr.  Thompson — I  will  try  to  be  respectful.  I  simply  wish  to  present  the  situation  in 
which  I  consider  the  respondent — 

The  Presidixg  Officek — The  court  must  say  that  the  continuation  of  the  strain  of 
language  like  that  now  used  would  certainly  be  called  to  order. 

Mr.  Thompson — Very  well,  I  stand  corrected,  may  it  please  the  court,  and  go  back  to 
my  point.  I  would  like  to  know  from  Judge  Otis  how  he  reconciles  Section  4  and  Sec- 
tion 8  of  the  20th  canon  of  the  Diocese  of  Illinois.  What  does  it  mean  when  it  says  the 
citations  shall  be  served  twenty  days  before  the  day  of  appearance,  and  a  written 
notice  of  the  time  and  place  of  trial  shall  be  served  thirty  days  before  ?  I  submit  that 
we  are  entitled  to  all  the  advantages  which  a  fair  and  liberal  construction  of  the  canon 
may  grant  us  if  that  construction  be  put  upon  it.  It  is  not  a  continuance  that  is  asked 
for.  It  is  simply  that  the  court  will  put  that  construction  upon  the  canon,  that  thirty 
days'  notice  of  the  time  and  place  of  meeting  is  yet  to  be  fixed  by  this  court,  aud  if  we 
are  to  have,  as  I  say,  a  reasonable  construction  put  upon  those  canons,  and  its  benefits 
extended  to  my  client,  if  we  are  not  in  a  court  or  diocese,  or  in  a  land  tliat  is  governed 
by  the  imperial  prerogatives  of  a  Roman  hierarchy,  I  say  we  are  entitled  to  it. 

Judge  Otis — Will  the  court  decide  the  question  ? 

The  Presiding  Officer — Thy  court  will  now  ret  re. 

During  the  absence  of  the  court,  Mr.  Fuller  entered  and  was  received  with  slight  ap- 
plause. 

At  the  expiration  of  twenty  minutes  the  court  returned. 

The  Presiding  Officer  —  The  court  announces  its  decision  in  reference  to  the 
conflict  between  the  provisions  of  Article  8  and  Article  4  as  insuflScient,  and  overrules 
the  objections  on  the  ground  that  the  provision  of  Article  8  iis,  that  after  the  expiration 
of  the  time  the  parties  cited  should  answer  unless  it  be  necessary  to  delay,  but  no  such 
necessity  having  been  shown  in  the  case,  the  obj^/ction  is  overruled. 

Mr.  Fuller — Mr.  President,  we  have,  up  to  this  time,  presented  such  objections  as 
we  had  to  the  jurisdiction,  and  various  exceptions  have  been  laid  before  you  and  the 
alleged  board  of  which  you  are  the  presiding  officer,  every  one  of  which  we  beliL-ved  and 
still  believe  were  well  taken,  but  all  of  which  have  been  persistently  overruled  without 
cause  assigned,  and  contrary  to  the  letter  and  spirit  of  your  own  law,  until  at  length  we 
have  reached  the  point  at  which  we  sliall  go  no  further.  I  have  applied  to  the  superior 
court  of  Chicago  for  an  injunction,  which  has  been  granted,  against  further  proceedings. 
[Applause  and  hisses. J 

The  Presiding  Officer — I  will  call  the  house  to  order.  I  must  call  the  house  to 
order.    Any  repetition  of  that,  and  the  room  will  be  cleared. 

Mr.  Fuller — Determined  that  if  our  client  were  smitten,  it  should  not  be  contrary 
to  the  l;iw,  we  have  felt  compelled  to  pursue  this  course.  The  Sheriff  of  Cook  County, 
who  is  present,  will  please  to  serve  the  writ  upon  tlie  gentlemea  whom  he  will  find 
here,  and  who  are  the  defendants  named  therein.     [Cheers,  applause  and  hisses.] 


26 


TRIAL    OF    REV.    CHARLES   EDAVARD    CHENEY. 


The  Sheriff  then  advanced  and  served  upon  each  of  the  Assessors  the  writ  of  injunction 
and  summons  issued  from  the  superior  court,  and  which  were  in  the  usual  form. 

The  writ  of  injunction  strictly  commanded  the  defendant^,  their  agents  and  attorneys, 
to  "absolutely  desist  and  refrain  from  all  further  proceedings  against  the  complainant, 
Charles  Edward  Cheney." 

After  a  consultation  lasting  a  quarter  of  an  hour,  the  Presiding  Officer  said  :  The 
court  announces  that  an  injunction  having  been  served  upon  th".m,  restraining  them 
from  further  proceedings  in  this  case,  it  stands  adjourned  till  to-morrow  at  2  o'clock. 

IN  SUPERIOR  COURT  OF  CHICAGO. 
The  injunction  was  ordered  on  the  23d  day  ot  July,  on  the  filing  of  the  following 

BILL  OF  COMPLAINT  : 

To  the  Honorable,  the  Judges  of  the  Superior  Court  of  Chicago,  in  Chancery  sitting : 

Your  orator,  Charles  Edward  Cheney,  files  this,  his  bill  of  complaint,  against  the  Rev. 
Samuel  Chase,  D.D  ,  Rev.  Thonuis  N.  Benedict,  Rev.  John  Benson,  Rev.  Henry  N. 
Pieice,  D.D.,  and  Rev.  A.  VV.  Snyder,  and  ihereupon  complaining,  says  : 

That  he,  your  orator,  is  a  presbyter  of  the  Protestant  Episcopal  church,  and  rector  of 
the  parish  of  Chi-ist  church,  in  the  city  of  Chicago,  in  the  Diccese  of  Illinois,  to  wit, 
in  the  county  and  State  aforesaid,  and  has  been  fruch  rector  for  more  than  nine  years. 

That  he  has  been  in  the  ministry  of  the  Protestant  Episcopal  Church  between  ten 
and  eleven  years,  and  a  presbyter  thereof  since  February,  1860. 

That  as  rector  of  Christ  Church,  as  aforesaid  he  receives,  and  is  paid  by  said  fparish 
the  sum  of  $4,.500  per  annum,  in  addition  to  the  use  of  ajrectory  belonging  to  said  parish, 
and  furnished  rent  free  to  him  as  such  rector  as  aforesaid. 

That  said  Christ  ( ,'hurcli  has  communicants  to  the  number  of  upwards  of  three  hun- 
dred, and  a  congregation  of  between  six  and  seven  hundred  usually  present  at  the  regu- 
lar Sunday  services  therein,  though  frequently  largely  in  excess  thereof;  and  a  Sunday 
school  of  from  six  to  seven  hundred  pupils,  including  those  of  a  chapel  pertaining  to 
and  sustained  by,  and  under  the  care  of  said  parish  ;  and  that  a  church  edifice  of  stone 
belongs  to  said  parish  and  is  used  by  it  for  religious  services,  of  the  cost  and  value  of 
more  than  *60,(X)0  and  with  the  lot  on  which  it  stands,  which  also  belongs  to  said  parish 
—about  $100,000. 

That  when  your  orator  became  the  rector  of  said  parish,  its  communicants  were  seven 
in  number  ;  its  Sunday  school  numbered  about  tliirty  ;  its  usual  congregation  was 
about  fifty,  and  its  cliurch  edifice  was  a  frame  building  worth  less  than  il,uOO,  and  it 
owned  no  lot.  And  your  orator  states  these  facts  with  a  view  to  convey  to  your  Honors 
that  he  has  been  abundantly  blessed,  humanly  speaking,  in  the  exercise  of  his  vocation 
as  a  minister  of  God's  Church  during  his  connection  as  such  with  the  diocese  and  parish 
aforesaid. 

Your  orator  further  shows  unto  your  Honors  that  he  was  born  of  parents  belonging 
to  the  Protestant  Episcopal  Church  ;  that  he  was  baptised,  and  at  the  age  of  14  years, 
confirmed  in  said  Church,  and  has  since  always  been  a  communicant  of  said  church, 
and  never  been  a  member  of  any  other  body  of  "Christians.  That  he  determined  at  an 
early  age  to  become,  God  willing,  one  of  the  ministry  of  said  church  ;  that  he  was  edu- 
cated to  pursue  that  vocation,  \V'hich  he  has  followed,  and  is  not  by  education  or  inclina- 
tion adapted  to  follow  any  other  vocation  ;  and  that  his  temporal  interests  are  involved 
in  his  being  and  remaining  a  member  of  such  ministry. 

Tliat  on  the  21st  day  of  June,  A.  D.,  18fi9,  there  was  delivered  to  your  orator,  by  Rev. 
Mr.  Knowles,  undoubtedly  the  same  referred  to  in  the  paper  called  a  "  citation,"  next 
mentioned,  two  papers,  the  one  called  a  "  citation  "  and  the  other  a  "  presentment," 
copies  of  which  are  hereunto  annexed,  marked  "  A  "  and  "  B.  " 

That  prior  to  the  delivery  to  your  orator  of  said  papers,  the  Rt.  Rev.  Henry  John 
Whitehouse,  Bishop  of  the  Protestant  Episcopal  Church  for  the  Diocese  of  Illinois,  called 
upon  your  orator,  and  in  an  interview  with  him,  desired  him  to  admit,  or  assumed  that 
he,  your  orator,  would  admit  that  he,  your  orator,  had  in  the  administration  of  that 
office  of  the_ service  of  the  Protestant  Episcopal  Church  in  this  country,  known  as  "  the 
public  baptism  of  infants,"  omitted  the  word  "  regenerate  "  wherever  occurring,  or 
where  sometimes  occurring  in  said  service  ;  but  your  orator  expressly  declined  to  admit 
anything  of  the  kind  to  said  Bishop.  That  said'  Bishop  desired  your  orator  to  promise 
not  to  so  omit  said  word  in  future,  which  your  orator  also  declined  to  do  or  thereby  to 
admit  that  he  had  done  so.  Tliat  said  Bishop  spoke  to  your  orator  upon  that  occasion 
in  regard  to  deposition  from  the  ministry  of  said  Protestant  Episcopal  Church,  and  in 
that  connection  stated  that  such  would  be  the  result  if  your  orator  "persisted  "  in  do- 
ing what  he  had  not  admitted  to  said  Bishop  he  had  done.    That  subsequently  in  said 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.         27 

interview-  the  said  Bishop  declared  that  he  would  cause  your  orator  to  be  brought  to 
trial  for  the  alleged  omission  of  the  word  aforesaid,  and  that  "there  could  be  but  one 
result,  and  that" deposition,  because,"  he,  the  said  Bishop,  continued  (and  your  orator 
gives  his  words  nearly  with  exactness  and  certainly  in  substance)  "of  the  ministers  of 
this  diocese  there  were  noiic  who  would  not  go  for  his  (your  orator's)  conviction,  except 
those  who  signed  that  disorganizing  protest,  and  they  were  ineligible  for  that  very  rea- 
son." I  hereupon  your  orat^)r  asked  the  said  Bishop  "  Why?"  and  said  Bishop  replied, 
"  Because  they  had  slandered  the  Bishop,  and  were  liable  to  civil  prosecution  on  that 
ground." 

Your  orator  further  shows  unto  your  Honors  that  the  "protest"  to  which  said  IMshop 
referred  undoubtedly  was  that  of  which  a  copy  is  hereunto  annexed  marked  "C," 
and  further  says,  that  he  is  informed  and  believes  that  said  Hishop  declares  that  he  will 
decline  to  issue  to  any  minister  of  the  Protestant  Episcopal  Church  in  this  diocese,  who 
signed  said  protest,  letters  dimissory  to  the  Bishop  of  any  other  diocese  of  said  Church 
without  "  serious  qualification,"  to  use  his  own  language,  and  has,  in  one  instance,  so 
refused  on  the  ground  that  signing  said  protest  subjected  the  subscriber  to  the  charge 
of  "  dishonesty  and  immorality." 

Your  orator  further  represents  to  your  Honors  that  he,  your  orator  signed  the  said 
protest  as  appears  therefrom,  and  that  from  such  the  expressions  of  the  said  Bishop, 
which  your  orator  has  given  with  as  much  accuracy  as  possible,  and  which  are  so  given 
with  substantial  correctness,  your  orator  feared  with  deep  pain,  that,  if  the  said  Bishop 
should,  at  any  time,  obtain  the  oportunity  canonically,  to  wit,  in  conformity  with  the 
diocesan  canons  of  this  diocese  to  have  your  orator  presented  and  so  brought  to  trial 
for  any  alleged  offence,  the  said  Bishop  would  be  prejudiced  and  biased  against  your 
orator,  and  that  such  his  prejudice  and  bias  would  be  detrimental  to  your  orator  in  the 
premises. 

Your  orator  further  shows  to  your  Honors  that  the  ecclesiastical  ■  government  of  the 
Protestant  Episcopal  Church  is  embodied  in  the  canons  of  the  General  Convention  and  of 
each  particular  diocese  of  said  Church,  and  that  such  canons  constitute  the  law  of  said 
Church  ;  and  your  orator  brings  into  court  here  the  canons  of  the  General  Convention 
and  those  of  the  Diocese  of  Illinois,  and  prays  that  they  may  be  taken  as  a  part  thereof; 
but  your  orator  makes  this  further  assertion  in  regard  to  said  canons  of  the  General 
Convention  that  the  "digest "  so  called,  thereof  herewith  presented,  does  not  embody  the 
action  of  the  General  Convention  of  said  Church  of  1868  on  the  subject  of  canons,  which 
your  orator  is  informed,  has  not  yet  been  ofheially  published  and  declared,  but  which  in 
the  best  form  in  which,  as  nearly  as  your  orator  can  discover  it  subsists,  upon  the  hear- 
ing hereof,  whether  preliminary  or  final,  your  orator  will  present  to  and  file  herein,  in 
this  court,  asking  that  it  may  be  taken  as  a  part  thereof,  so  far  as  applicable,  although, 
at  the  same  time  your  orator  objects  that  such  last  mentioned  so  called  canons,  so  far  as 
they  may  differ  from  those  established  down  to  and  inclusive  of  the  year  1805  have  not 
been  to  your  orator's  knowledge,  officially  published  and  so  gone  into  effect,  and  your 
orator  submits  that  question  to  the  court  for  determination.  Your  orator  further  shows 
unto  your  honors  that  said  citation  and  presentment  are  utterly  and  wholly  void  in  this, 
that  the  so  called  commission  of  presentors  was  not  legally  or  canonically  formed  or 
created  ;  that  said  citation  shows  upon  its  face  that  said  presentors  were  not  appointed, 
and  said  presentment  found  according  to  the  20th  diocesan  canon  of  Illinois,  nor  does 
said  presentment  show  affirmatively  that  it  was  found  according  to  the  said  canon.  For 
both  of  which  said  reasons  said  pretended  presentment  and  the  citation  are  illegal  and 
void,  and  no  proceeding  thereon  can  be  validly  taken  under  the  laws  of  the  said  Church. 
That,  as  matter  of  fact,  the  major  part  of  the  vestry  of  the  Church  of  which  your  ora- 
tor is  minister,  have  not  given  the  said  Bishop  information  that  your  orator  was  guilty 
of  offence  or  misconduct  for  which  he  was  liable  to  be  tried  or  under  imputation  of  be- 
ing so  guilty,  or  any  information  from  which  the  imputation  of  his  being  so  guilty 
could  arise  ;  nor,  as  j'our  orator  believes,  was  such  information  given  by  three  presby- 
ters of  this  diocese  entitled  to  .seats  in  the  convention  thereof;  nor  as  your  orator  is 
advised,  has  the  said  Bishop  had  reason  to  believe  fi-om  "public  rumor"  as  contemplat- 
ed in  Section  2nd  Canon  37,  of  the  General  Convention,  that  your  orator  was  guilty,  or 
under  the  imputation  of  being  guilty,  of  offence  or  misconduct  as  aforesaid.  And  your 
orator  charges,  for  these  reasons,  that  the  defendants  hereinafter  mentioned,  had  and 
have  no  jurisdiction,  under  the  canons  of  said  Church,  to  proceed  as  they  have  done  and 
are  doing. 

Your  orator  further  shows  unto  your  Honors?,  that  as,  and  by  the  alleged  citation 
aforesaid,  the  names  of  certain  presbyters  of  the  diocese  of  Illinois  are  furnished  to 
your  orator  for  the  selection  therefrom  of  assessors  according  to  the  canon  as  alleged, 
that  your  orator,  although  believing  said  proceedings  to  be  void  from  the  invalidity  of 
the  appointment  of  said  presentors,"yet  hoping  that  an  unprejudiced  board  of  a.ssessors 
miffht  be  finallv  selected,  and  so  the  question  of  such  manifest  invalidity  fairly  passed 
upon  within  the  Church  itself,  where  such  questions  might  appropriately  be  detcTmined, 
endeavored,  in  the  first  instance,  to  discover  whether  opportunity  might  be  given  in- 


28         TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

formally  to  ascertain  of  the  persons  so  mentioned  as  aforesaid  whether  they  had  formed 
or  expressed  an  opinion  as  to  your  orator's  guilt  or  innocence  of  ott'ence  or  misconduct 
for  which  he  was  liable  to  trial  or  conviction,  and  accordingly  his  counsel  wrote  and 
sent  to  the  said  Bishop  a  letter,  of  which  a  copy  is  hereunto  annexed  marked  "  D," 
whose  reply  thereto  is  also  annexed,  marked  "  E."  That  failing  in  such  etfort  inform- 
ally to  ascertain  a  fact  essential  to  securing  impartiality  in  those  who  were  to  pass  upon 
the  question  involved,  and  should  said  matter  ever  come  to  trial  would  find  your  orator 
guilty  or  not  guilty  in  the  premises,  your  orator  awaited  the  day  fixed  for  the  return  of 
the  said  citation,  in  order  at  that  time,  and  in  appearing  to  object  thereto  to  exercise 
formally  such  rights  as  he  was  entitled  to. 

That  your  orator  made  no  selection  afforded  him  by  said  Canon  20  before  the  21st  day 
of  July,  1869,  but  was  on  the  contrary  advised  by  counsel  that  he,  your  orator,  was  en- 
titled to  make  selection  on  the  return  day  of  the  citation  aforesaid,  and  to  then  examine 
the  presbyters  appearing  to  sit  as  assessors  touching  their  competency  to  do  so,  and 
might  then  exclude  such  as  were  found  incompetent. 

That  on  the  21st  day  of  July,  1869,  your  orator  appeared  at  the  place  and  time  men- 
tioned in  said  citation,  but  the  eight  presbyters  named  in  said  citation  were  not  present, 
but  only  live  of  that  number,  to  wit.:  Rev.  Samuel  Chase,  D.  D.,  Rev.  Henry  N.  Pierce, 
D.  D.,  Rev.  rhomas  N.  Benedict,  Rev.  John  Benson  and  Kev.  A.  W.  Snyder ;  but  that 
why  said  five  gentlemen  were  here,  and  no  others,  was  not  made  officially  to  appear. 

That  said  last  mentioned  persons  informed  your  orator  that  the  others  of  said  eight 
presbyters  named  in  said  citation  would  not  officially  appear,  and  that  the  said  five  de- 
clined to  be  examined  touching  their  competency  to  sit  as  assessors ;  and  your  orator 
further  shows  unto  your  Honors  that  he  had  been  theretofore,  but  not  until  after  the 
8th  of  July,  18'j9,  informed  and  believed,  and  he  still  believes,  that  Rev.  A.  W.  Snyder, 
one  of  the  said  five  persons  appearing,  as  aforesaid,  had  formed  and  expressed  an  opin- 
ion of  your  orator's  guilt  in  the  premises,  and  your  orator,  thereupon,  upon  said  five 
presbyters  declining  to  be  examined,  as  aforesaid,  touching  their  competency  as  afore- 
said, filed  his  protest  and  objections  against  and  by  way  of  challenge  to  the  sitting  of 
said  Rev.  Samuel  Qiase,  Rev.  Thomas  N.  lienedict.  Rev.  John  Benson,  Rev.  Henry  N. 
Pierce  and  Rev.  A.  w.  Snyder,  and  claiming  to  ac  as  a  court  in  the  premises,  upon  the 
several  grounds  of  your  orator's  not  having  had  an  opportunity  to  examine  and  select 
as  aforesaid,  and  because  of  the  incompetency  of  said  Snyder  as  aforesaid,  a  copy  of 
which  protest  is  annexed.  And  said  Messrs.  Chase,  Benedict,  Pierce,  Benson  and  Snyder 
overruled  said  protest  and  objection,  and  each  and  every  part  thereof,  and  refused  to  allow 
either  of  the  objections  therein  stated,  and  insisted  upon  proceeding  to  the  trial  of  your 
orator  in  the  premises  ;  and  your  orator  further  shows  unto  your  Honors  that  his  coun- 
sel thereupon  called  upon  said  alleged  presentors  in  said  alleged  presentment  named,  to 
produce  the  commission  under  which  they  assumed  to  act,  and  they  thereupon  produced 
an  alleged  commission,  a  copy  of  which  is  annexed,  which  alleged  commission  was  and 
is  entirely  void  for  want  of  jurisdiction,  upon  the  grounds  next  stated  in  reference  to 
the  alleged  citation  and  presentment,  and  was  objected  to  on  those  grounds,  and  sucli 
objection  was  overruled  at  the  same  time  that  the  exceptions  next  mentioned  were 
overruled  ;  and  your  orator  further  here  states  and  protests,  that  the  statements  in  said 
alleged  commission,  so  far  as  relates  to  a  conversation  between  himself  and  said  Bishop, 
were,  and  are,  substantially  erroneous.  Tliat  your  orator  thereupon  tiled  his  excep- 
tions to  the  jurisdiction  of  said  persons  so  assuming  to  act  as  a  court  and  assessors, 
upon  the  ground  .of  invalidity  of  the  appointment  of  said  presentors,  as  hereinbefore 
set  forth  ;  and  that  said  alleged  presentment  charged  no  offence  or  misconduct  for  which 
your  orator  was  or  is  liable,  which  the  assessors  thereupon  overruled,  and  insisted  upon 
their  right  and  power  to  try  said  presentment,  and  are  now  intending  and  proceeding 
so  to  do. 

And  your  orator  asks  leave  to  file  with  your  Honors  a  copy  of  said  exceptions  to  the 
jurisdiction  of  said  assessors  in  the  premises. 

Your  orator  further  shows  unto  your  Honors  that  he  believes  said  Messrs.  Chase, 
Benedict,  Benson,  Pierce  and  Snyder  are  largely  influenced  by  the  bishop  of  this  diocese, 
and  that  said  bishop  has,  as  aforesaid,  threatened  your  orator  with  deposition  from  the 
ministry,  and  your  orator  believes  said  last  mentioned  presbyters  to  labor  under  the 
supposition  that  such  sentence  might,  if  your  orator  had  been  found  guilty,  be  passed 
upon  him  ;  whereas,  your  orator  shows  unto  your  Honors  that  he  is  advised  by  his 
counsel  that  he,  your  orator,  cannot  be  lawfully  deposed  from  the  ministry  as  aforesaid, 
but  at  the  same  time  your  orator  is  advised  that,  should  the  said  five  persons  claiming 
to  sit  as  a  court  as  aforesaid  be  permitted  to  proceed  and  passing  sentence  of  deposition, 
the  same  should  be  approved  and  deposition  inflicted,  however  illegal  such  a  course 
might  be,  your  orator  would  nevertlieless  be  practically  subjected  to  the  penalty  of 
such  sentence,  and  could  not  officiate  in  any  other  diocese,  whose  bishop  could  not  go 
behind  such  sentence,  nor  is  there  any  right  of  appeal  given  your  orator  in  the  premises. 
No  .V  your  orator  shows  unto  your  Honors  that  by  the  law  of  the  Church  he  is  entitled 
to  an  impartial  board  of  assessors  to  try  him,  if  he  is  amenable  to  trial,  for  oflfence  or 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.        29 

misconduct,  under  and  by  said  law  ;  that  he  is  advised  and  believes  that  he  is  entitled 
to  obtain  such  impartial  board  by  the  exercise  of  the  riglit  of  cliallen>!;e  of  tlie  presl)y- 
ters  designated  for  selection  of  assessors  therefrom,  but  disciualilied  by  bias  or  i)iejudiec, 
and  is  entitled  to  examine  presbyters  so  designated  upon  tlie  question  of  tlieir  com- 
petency, and  that  such  test  of  impartiality  such  right  of  examination,  and  such  inii)ar- 
tial  board  have  all  been  and  are  now  refused  him,  in  the  iireniises  ;  tliat  tlie  Kev. 
Messrs.  Chase,  Pierce,  Benedict,  Benson  and  8uyder,  even  if  constituting  a  court  com- 
petent to  try  your  orator  far  any  offence  or  misconduct  on  his  part,  cannot  talic  cog- 
nizance of  tlie  alleged  presentment,  in  this  instance,  because  of  the  invalidity  of  the 
appointment  of  prcsentors  as  aforesaid,  and  because,  as  your  orator  is  advised,  the 
presentment  charges  no  offence  tliat  can  subject  your  orator  to  trial  and  sentence  in 
the  premises ;  and  that  said  presentment  is  manifestly  insufficient  and  invalid,  for 
want  of  sufficient  certainty  in  the  allegations  therein  contained. 

Your  orator  further  shows  unto  your  Honors  that  he  has  been  served  with  no  other 
papers  on  belialf  of  said  prcsentors  <>r  the  bishop  of  the  said  diocese  tiiau  the  alleged 
citation  and  presentment ;  and  your  orator  submits  to  this  honorable  court  that  neitlier 
of  these  constitute  notice  of  time  and  place  of  trial  under  said  canons ;  and  that  there- 
fore, were  these  proceedings  otherwise  valid,  the  facts  in  issue  could  not  now  be  tried, 
thougli  the  defendants  threaten  to  and  are  about  to  proceed  so  to  do. 

Your  orator  further  shows  nnto  your  Honors  that,  as  the  rector  of  Christ  Churcli 
aforesaid,  lie  is  entitled  to  receive,  and  does  receive,  the  salary  aforesaid.  That  it  is 
claimed  that,  by  such  deposition  if  intlicted  upon  him,  or  suspension,  not  only  would 
he  be  deprived  of  such  salary  and  his  position  as  such  rector,  but  lie  could  not  longer 
legally  exercise  his  vocation  as  a  minister  of  the  Protestant  Episcopal  Church,  and  so 
would  be  deprived  of  the  means  of  support  to  which  he  has  the  right  to  look,  and  of 
which  he  cannot,  save  in  a  proper  case  and  by  a  competent  and  impartial  tribunal  pro- 
ceeding, in  a  legal  manner,  be  deprived,  if  al  all.  Yet  your  orator  shows  that  said 
Messrs.  Chase,  Benedict,  Benson,  Pierce  and  Snyder  are  proceeding  as  a  court,  although 
not  according  to  the  law  of  the  church,  to  assume  jurisdiction  where  they  have  none, 
which  jurisdiction  your  orator  has  not  conceded,  and  his  objections  whereto  he  has  in 
no  manner  waived. 

And  your  orator  shows  unto  your  Honors  that  he  has  had  numerous  calls  to  parishes 
In  other  dioceses  of  the  Episcopal  church  In  the  United  States  at  much  higher  salaries 
than  he  at  present  receives,  and  down  to  this  time  is  receiving  such  calls. 

That  although  deposition,  if  brought  about  by  the  means  indicated,  would  be  illegal, 
and  although,  if  such  sentence  should  be  passed  it  might  not  deprive  your  orator  of  his 
salary  and  the  exercise  of  his  vocation,  as  aforesaid,  yet  irreparable  damage  and  multi- 
plicity of  suits  would  inevitably  result  therefrom.  That  such  would  be  the  case  also 
were  sentence  of  suspension  delivered  and  attempted  to  be  carried  into  effect.  That 
your  orator  does  not  believe  himself  to  have  been  guilty  of  offence  and  misconduct 
rendering  him  liable  to  trial,  and  in  that  regard  only  desires  an  impartial  trial  before 
the  tribunals  of  the  Church  ;  but  your  orator  on  information  and  belief,  charges  that  he 
cannot  have  a  fair  and  impartial  trial  before  the  five  presbyters  assuming  to  proceed  in 
the  trial  of  your  orator  in  this  instance,  even  if  they  were  otherwise  competent  to  con- 
stitute a  court  in  the  premises,  which  they  are  not. 

And  your  orator  well  hoped  that  said  Chase,  Benedict,  Benson,  Pierce  and  Snyder 
would  have  declined  to  assume  jurisdiction  in  the  premises,  or  to  assume  to  try  your 
orator  when  incompetent  to  do  so.  But  now,  so  it  is,  may  it  please  your  Honors  that 
said  last  named  persons,  combining  and  confederating  with  others  how  to  injure  your 
orator  in  the  premises,  neglect  and  refuse  so  to  do,  but  threaten  to  proceed  as  aforesaid, 
and  in  excuse  thereof  set  up  a  variety  of  unfounded  pretences. 

In  tender  consideration  whereof,  and  for  as  much  as  your  orator  is  remediless  in  the 
premises  at  and  by  the  strict  rules  of  the  common  law,  and  cannot  have  adequate  relief 
save  in  a  court  of  equity,  where  matters  of  this  kind  are  cognizable  and  relievable  ;  to 
the  end,  therefore,  that  said  Rev.  Samuel  Chase,  D.  D.,  Rev.  Thomas  N.  Benedict,  Rev. 
John  Benson,  Rev.  Henry  N.  Pierce,  D.  D.,  and  Rev.  A.  T.  Snyder  may  be  enjoined  and 
commanded  by  this  honorable  court  to  absolutely  desist  and  refrain  from  all  further 
proceedings  in  the  matter  of  the  said  presentment  (so  called)  against  your  orator  for 
certain  alleged  offences  therein  specified,  which  matter  said  defendants  are  now  threat- 
ening to  try  and  adjudicate,  as  a  court  under  the  canons  of  the  Protestant  Episcopal 
Church  of  the  Diocese  of  the  State  of  Illinois,  and  from  proceeding  in  any  manner  as  a 
court,  or  in  any  manner  trying,  or  assuming  to  try  your  orator  upon  any  charges  what- 
ever, and  that  they  may  answer  hereto  (but  not  upon  oath,  their  oatlis  being  hereby 
waived,  pursuant  to  the  statute,  and  may  show,  if  they  can,  why  your  orator  should 
not  have  the  relief  herein  prayed,  and  that  upon  the  hearing  hereof  the  defendants  may 
be  perpetually  enjoined  from  proceeding  in  the  premises  ;    and  that  your  orator  may 


30         TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

have  such  other  and  further  relief  as  the  nature  of  the  case  rhay  require  and  as  may  be 
agreeable  to  equity  and  good  conscience. 

May  it  please  your  Honors  to  grant  unto  your  orator  the  writ  of  injunction  issuing 
out  of  and  under  the  seal  of  this  court,  thereby  commanding  said  defendants  and  each 
of  them  to  absolutely  desist  and  refrain  from  proceeding  to  try  your  orator  upon  the 
pretended  presentment  aforesaid,  in  the  proceedings  now  pending,  or  in  any  way,  or 
upon  any  charges,  or  under  any  circumstances  as  a  court  or  assessors  as  aforesaid,  and 
also  the  writ  of  summons  to  said  defendants  directed,  commanding  them  to  appear  and 
answer,  and  to  stand  to  and  obey  the  further  order  of  the  court  herein. 

And  as  in  duty  bound,  your  orator  will  ever  pray. 

Chables  Edward  Cheney. 
By  Fuller,  Thompson  and  Rich,  his  solicitors. 

The  bill  was  sworn  to  before  M.  B.  Rich,  Notary  Public. 

The  writ  of  injunction  was  ordered  by  Judge  John  A.  Jameson. 

EXHIBITS  ATTACHED  TO  THE   BILL. 

A  —  Citation  ;  B  —  Presentment,  "  C  "  —  "  Protest ; "  "  D  "  —  Letter  to  the  Bishop, 
*'  E  "  —  Reply  of  the  Bishop  ;  "  F  "  —  Challenge  or  protest  objection ;  "  G  "  —  "  Com- 
mission ; "  "  H  "  —  Objections  to  jurisdiction. 

For  Exhibits  excepting  "  C,"  see  ecclesiastical  proceeding  ante.  Exhibit  "  C  "  is  as 
follows  :  • 

PROTEST. 

Be  it  knowx  to  all  men,  that  we,  the  undersigned.  Presbyters  of  the  Protestant 
Episcopal  Church  of  the  United  States.of  America,  moved,  as  we  humbly  trust,  by  a 
becoming  sense  of  duty  to  God,  to  the  Church  whose  ministers  we  are,  and  to  our  own 
souls  ;  and  solemnly  remembering  the  vows  we  took  in  Urdination  to  "  be  ready,  with 
all  faithful  diligence,  to  banish  and  drive  away  from  the  Church  all  erroneous  and 
strange  doctrines  contrary  to  God's  Word,  and  to  use  both  public  and  private  moni- 
tions, a.s  need  shall  require  and  occasion  shall  be  given," — we  the  Presbyters  aforesaid, 
satisfied  from  evidence,  to  us,  incontestable,  that  Great  Peril  now  exists  to  the  purity 
of  the  Faith  and  WorMp,  not  only  of  the  Mother  Church  of  England,  from  which  some 
of  us  derive  our  Orders,  but  also  of  the  Protestant  Episcopal  Church,  and  that  a  scheme 
exists  to  undermine  the  scriptural  foundation  of  these  Churches,  on  the  specious  plea  of 
a  "  revived  Catholicity,"  do  now,  and  hereby,  in  this  formal  instrument,  enter  our  sol- 
emn Protest  against  all  teachings,  innovations,  machinations  and  devices  that  are  em- 
ployed for  unprotesUintizing  this  Protestant  Episcopal  Church,  corrupting  her  doctrine, 
debasing  her  worship,  and  overturning  her  long  established  rites,  ceremonies  and 
usages. 

And  the  undersigned  Presbyters,  together  with  the  laymen,  whose  names  are  hereun- 
to appended,  as  assenting  and  coutirming,  do  furthermore  solemnly  Protest  against  the 
doctrines  and  teachings  of  the  following  passages,  extracted  from  the  printed  and  pub- 
lished writings  of  their  respective  authors  —  men  prominent,  by  position,  in  the  Protes- 
tant Episcopal  Church  : — 

"  In  the  regeneration  by  Holy  Baptimi,  in  the  spiritual  and  ineffable  presence  of  our 
Lord  in  the  Eucharist,  with  the  Mystical  Nutriment  through  His  Body  and  Blood,  as 
well  as  in  the  definition  of  the  Sacraments  gencitilly,  there  is  Virtual  Concurrence 
in  the  accepted  standards  of  the  historical  Churches,  Eastern,  Western,"  (or  Roman) 
"and  Anglican." 

"  In  addition  to  this  substantial  agitement  in  Orders,  Creeds  and  Sacraments,  the  nte  of 
Confirmation,"  &c.    [The  Convention  Address  of  Bishop  Whitehouse,  1868,  page  29.] 

"  Besides  the  two  Sacraments  of  tlie  highest  order,  there  are  other  inferior  rites, 
having  tlie  same  natwe,  but  not  necessary  in  the  same  way  ;  among  these  are  Confirma- 
tion, Matrimony  and  Holy  Orders,  in  all  of  which  they  are  an  outward  sign,  and  an  in- 
ward grace." 

"1st.  The  sign:  called  Sacramentum,  bread  and  wine;  simple  elements  of  daily 
sustenance.    These  remain  in  their  proper  substance  after  consecration,  retaining  their 


TRIAL   OF    REV.    CHARLES   EDWARD   CHENEY.  31 

proper  nature,  and  yet  tJiey  undergo  a  Mystical  Cuange,  whereby  they  become  the  forms 
under  which  Christ  is  present . ' ' 

"2nd.  The  thing  signified  :  called  Res,  the  Body  and  Blood  of  Christ ;  His  glori- 
fied humanity,  which,  after  a  manner  inexplicable  and  without  a  parallel  in  t/ie  ranije  of  oar 
knowiedge,  becomes  present  after  consecration,  not  bodily  or  physically,  according  to 
the  laws  of  material  or  carnal  bodies,  bat  supra-locally,  hyper-physieally  and  spiritually 
in  some  way  believed  in  by  the  Church,  but  known  only  to  God."  ["  Manual  of  In- 
struction for  Confirmation  Classes,''  by  the  Rev.  Dr.  Dix,  pages  41  and  53.] 

"Question.     How  do  we  become  partakers  of  the  nature  of  the  second  Adam?" 

"Answer.     By  our  New  Birth  in  Holy  Baptism." 

"Question.     What  then  begins  the  Christian  Life?" 

"Answer.     Holy  Baptism. 

"  Question.     What  is  the  Second  great  step  in  the  Christian  Life  ?" 

"  Answer.    Confirmation." 

"Question.     What  is  the  Third?" 

"  Answer.    The  Holy  Communion." 

"Question.     What  is  the  Fourth  ?" 

"  Answer.    Death." 

"  Question.    What  two  titles  has  the  Church  given  to  the  Blessed  Virgin  Mary  ?" 

"  Answer.    She  is  called  the  Bringer-forth  of  God  and  the  Ever  Virgin  Mary." 

"  Question.     How  do  we  receive  forgiveness  for  sin  after  Baptism  ?" 

"  Answer.    By  absolution  and  the  Holy  Communion." 

"  Question.    Into  how  many  divisions  is  Everlasting  Life  divided  ?" 

"  Answer.  Into  that  which  is  begun  here  on  Earth,  in  the  Church,  and  through  the 
Sacramsnt,"  &c.     [Rev.  Dr.  DeKoven's   ''Catechism  on  Confirmativn,"  page  72  and  82. 

We  solemnly  declare  that,  in  our  judgment,  the  preceding  extracts  aj-e  Tiot  in  harmony 
with  the  doctrines  and  principles  of  the  Protestant  Episcopal  Church,  but  directly  the 
reverse,  in  many  particulars,  of  the  teachings  of  her  Articles,  Liturgy  and  Homilies 
— the  very  reverse  of  the  principles  in  defence  of  wliich  many  of  the  Bishops  and  other 
dignitaries  of  our  Mother  Church  endured  the  fires  of  martrydom. 

And  we  furthermore,  declare  it  our  fixed  purpose  and  intention,  under  God,  to  do 
what  in  us  lies  towards  the  freeing  of  this,  our  beloved  Church,  from  the  domination 
and  perpetuation  of  such  sentiments  and  doctrines.  And,  for  the  integrity  of  our 
present  action,  we  appeal  to  the  Great  Searcher  of  Hearts,  and,  for  our  vindication,  to 
the  candid  judgment  of  all  earnest,  thinking.  Christian  men,  and  more  especially  to 
that  of  the  members  of  our  own  Protestant  Episcopal  communion. 

Chicago,  III.,  Feb.  18,  1869. 


ECCLESIASTICAL     COURT, 
THIRD      DAT. 

Chapel  of  the  Cathedral  of  )    ■ 
St8.  Pbfek  and  Paul,  V 
JuLT,23,  1869.      ) 

The  ecclesiastical  court,  for  the  trial  of  Rev.  Charles  E.  Cheney,  which  adjourned  on 
Thursday,  in  response  to  a  temporary  injunction  issued  from  the  superior  court,  to  ab- 
stain from  further  proceedings,  reassembled  at  2:30.  The  assessors  appeared  and  took 
their  seats.  Rev.  Dr.  Chase  presiding.  Mr.  Cheney  Avas  not  present,  although  his  coun- 
sel occupied  seats  in  the  audience.  The  chapel  was  filled,  as  soon  as  the  doors  were 
thrown  oj^en,  by  an  audience  many  members  of  which  had  come  from  the  extreme 
southern  portion  of  the  city — Mr.  Cheney's  parish. 


32 


TRIAL   OF    REV.    CHARLES   EDWARD    CHENEY. 


As  soon  as  the  court  had  convened,  Bishop  Whitehousb  said  : — 
Mat  it  Please  Your  Vert  Revkrsnd  Coukt  —  Having  received  from  you  fl  com- 
munication regarding    a  postponement,  for  a  definite    time  therein  named,  of    the 
further  proceedings  in  this  trial,  I  have  prepared  an  answer  thereto,  which  I  present 
to  your  body,  and  request  that  it  may  be  publicly  read. 

The  president  of  the  court  read  the  documents  submitted,  as  follows : 

REQUEST  FOR  ADJOURNMENT. 

CATHKnRAL  OF  Sts.  Peter  AND  Paitl,  Chlcago,  July  23,  1369.— To  the  Right  Rever- 
end, the  Bishop  of  Illinois  :  —  The  undersigned, "members  of  and  composing  the  ecclesi- 
astical court  for  the  trial  of  the  Rev.  Charles  Edward  Cheney,  rector  of  Christ  church, 
Chicago,  in  the  matter  of  the  presentment  of  llev.  George  F.  Cushman,  D.  D.,  Rev. 
Richard  F.  Sweet,  B.  D.,  and  the  Hon.  L.  B.  Otis,  against  him,  having  been  served  with 
a  writ  of  injunction,  emanating  from  the  superior  court  of  Chicago,  forbidding  all  fur- 
ther proceedings  in  the  matter  of  such  presentment,  until  the  further  order  of  such 
court  in  the  premises,  which  writ  was  so  served  during  the  actual  progress  of  such 
trial,  on  the  2'id  instant,  thus  interfering  by  civil  mandate  with  the  rights  and  preroga- 
tives of  this  sjiiritual  tribunal;  therefore,  while  solemnly  protesting  against  the  as- 
sumed jurisdiction  of  such  civil  court  in  the  matter,  but  at  the  same  time  wishing 
respectfully  to  submit  to  the  constituted  a\ithorities  of  the  State,  we  have  to  request 
that  the  trial  of  said  Charles  E.  Cheney  be  postponed  until  Thursday,  the  29th  day  of 
July  instant,  at  2  o'clock  in  the  afternoon,  under  the  authority,  by  the  canon  law  of 
the  diocese,  vested  in  you.  Respectfully  submitted, 

Samuel  Chase, 

President  of  the  Court. 
IlKNRT  N.  Pierce, 
Thos.  N.  Benedict, 
John  Benson, 
A.  vV.  Sntder. 


ADJOURNMENT  ORDERED. 

Diocese  of  Illinois : 

Whereas,  The  counsel  for  the  respondent  in  the  ecclesiastical  trial  of  the  Rev. 
Charles  E.  Cheney,  rector  of  Christ  church,  have  applied  to  the  superior  court  in 
chancery,  for  an  injunction  to  stay  all  further  proceeding  on  said  trial,  and  as  on  such 
bill  of  complaint  an  injunction  has  been  granted  by  his  honor,  John  A.  Jameson,  of  the 
honorable  judges  of  said  court  of  chancery,  and  summons  have  been  served  by  the 
sherifif,  on  the  members  of  the  ecclesiastical  court,  while  proceeding  with  the  trial,  sit- 
ting as  assessors  duly  qualified. 

Therefore,  In  deference  to  law  and  order,  but  denying  that  the  said  honorable  court 
of  law  and  equity  has  any  jurisdiction  in  the  matter,  and  protesting  against  all  claim 
of  the  civil  tribunals  to  interfere,  whether  by  equitable  proceedings,  or  in  any  manner 
of  supervision  and  control  in  the  administration  of  the  ecclesiastical  discipline  of  the 
church,  in  the  trial  of  its  ministers  : 

I,  the  bishop  of  the  diocese  of  Illinois,  acting  in  concurrence  with  the  expressed 
request  of  the  assessors,  and  under  the  provisions  of  section  3,  canon  20,  of  the  diocese 
of  Illinois,  do  hereby  postpone  the  court  for  the  trial  of  the  Rev.  Chas.  E.  Cheney,  to 
Thursday,  the  39th  "day  of  July,  A.  D.,  1869,  at  the;  usual  place  of  convening,  to  wit.: 
the  chapel  of  the  cathedral,  at  3  o'clock  in  the  afternoon. 

Salve  Ecclesia. 

Given  under  our  official  seal  and  signature,  this  23d  day  of  July,  A.  D.  1869,  in  the 
18th  year  of  my  consecration.  Hbnrt  J.  Whitehouse. 

[Seal.]  Bishop  of  Illinois. 

The  president  then  said  : 

In  accordance  with  the  documents  just  now  read,  the  court  is  hereby  postponed  to 
the  day  just  now  read — the  29th  day  of  July,  at  3  o'clock  in  the  afternoon. 


TRIAL   OF    REV.    CHARLES   EDWARD    CHENEY.  33 

CHANGE  OF  COUNSEL  FOR  THE  PROSECUTION. 

Hon.  8.  Corning  Judd,  of  Lewiston  111.,  having  been  telegraphed  yesterday  morning, 
arrived  in  the  city  in  the  afternoon.  He  will  conduct  the  case  on  behalf  of  the  prose- 
cution, as  Judge  Otis  is  about  to  depart  for  the  east. 

IN  SUPERIOR  COURT  OF  CHICAGO. 

On  the  26th  day  of  July,  the  respondents  in  the  bill  of  complaint  filed  their  answer 
as  follows. 

State  of  Illinois,  Cook  county,  ss, — Superior  Court  of  Chicago. 

Charles  D.  Cheney  vs.  Samuel  Cliase  et  al.    In  chancery. 

The  joint  and  several  answers  of  Rev.  Samuel  Chase,  D.  D  ,  Rev.  Thomas  N.  Bene- 
dict, Rev.  John  Benson,  Rev.  Henry  N.  Pierce,  and  Kev.  A.  W.  Snyder,  the  defendants 
to  the  bill  of  complaint  of  the  Rev.  Charles  E.  Cheney,  complainant. 

These  respondents  now,  and  at  all  times,  saving  and  reserving  to  themselves  all  man- 
ner of  benefits  and  advantages  wliich  may  be  taken,  by  exception,  to  the  said  complain- 
ant's said  bill  of  complaint  for  the  manifold  errors,  uncertainties,  insufficiencies,  and 
iniiun-fections  therein  contained  (and  expressly  denying  all  equity  on  the  face  of  the 
said  bill,  and  all  jurisdiction  of  tliis  honorable  court  in  respect  to  the  subject  matter  of 
the  same),  for  answer  thereunto,  or  to  so  much  and  such  parts  thereof  as  they  are  ad- 
vised by  their  counsel  is  material  for  them  to  make  answer  unto,  answering  say  ;  that 
tliey  admit  that  the  said  complainant  has  been  and  is  a  presbyter  of  the  Protestant 
Episcopal  church,  and  rector  of  the  parish  of  Christ  church,  Chicago,  and  that  he 
receives  and  is  paid  a  salary  and  has  the  use  of  a  rectory  and  that  said  parish 
of  Christ  church  has  communicants,  a  congregation,  a  Sunday  school  and  a  ciiurch 
edifice  of  the  cost  and  value  stated  in  the  bill,  and  that  said  complainant  was 
educated  for  the  ministry  of  said  Protestant  Episcopal  church,  all  as  stated 
and  set  forth  in  the  said  bill  of  complaint ;  but  respondents,  each  for  himself,  says 
that  lie  has  no  knowledge  as  to  whether  or  not  said  complainant  is  adapted  to 
follow  any  other  vocation,  nor  as  to  whether  or  not  his  temporal  interests  are  involved 
in  his  being  and  remaining  a  member  of  such  ministry  yet  upon  information  and 
belief  these  respondents,  each  for  himself,  denies  that  said  complainant  is  not  adapted 
to  follow  any  other  avocation,  or  that  his  temporal  interests  are  so  involved  as  afore- 
said. 

And  these  respondents,  further  answering,  each  for  himself,  says,  that  while  he  has 
no  knowledge  of  the  service  upon,  or  delivery  to  said  complainant  of  the  papers  re- 
ferred to  in  said  bill  of  complaint — one  called  a  "citation,"  and  the  other  a  "present- 
ment,"—  yet  upon  information  and  belief,  he  admits  that  the  same  were  delivered  to 
said  complainant  at  the  time  mentioned  in  said  bill. 

And  these  respondents  further  answering,  each  for  himself,  admits,  that  the  ecclesiast- 
ical government  of  the  Protestant  Episcopal  church  is  in  part  embodied  in  the  canons 
of  the  general  convention  of  each  particular  diocese  of  said  church  ;  but  respondents 
each  for  himself,  denies,  that  said  canons  embody  all  the  rules  and  laws  passed  for  such 
ecclesiastical  government,  but  the  constitution  of  the  Protestant  Episcopal  church  in 
the  United  States  of  America,  and  the  constitutions  of  the  respective  dioceses  of  su<'h 
church,  as  well  as  the  common  laws  of  the  church,  enter  into  and  form  part  and  parcel 
of  the  law  of  the  said  Protestant  Episcopal  church,  and  of  and  for  the  ecclesiastical 
government  of  the  same  and  of  the  members  thereof.  And  these  respondents  submit 
that  the  constitution  and  canon  of  the  general  convention  of  said  church  and  the  con- 
stitution and  canons  of  the  diocese  of  Illinois  are  not  restrictive,  nor  are  any,  or  either 
of  them  restrictive,  neither  as  to  offences  for  Miiich  presbyters  or  priests  of  said  church 
may  be  punished,  nor  altogether  as  to  the  manner  or  mode  of  procedure,  but  respond- 
ents submit  that  according  to  their  knowledge  and  understanding  of  the  ecclesiastical 
law,  and  as  they  are  advised  by  their  counsel,  and  verily  believe,  every  bishop  of  the 
Protestant  Episcopal  church  has,  by  the  common  law  of  the  church,  jurisdiction  annex- 
ed to  his  office  as  judex  ordiiiariits,  within  his  own  diocese,  and  has  full  power  and  au- 
thority "  for  the  correcting  and  punishing  of  such  of  his  church  as  be  unjust,  disobedient 
and  criminous,  for  the  exercise  of  all  manner  of  spiritual  discipline,  whet  her.  for  the 
administration  of  punishment  for  offences  or  for  the  regulation  and  government  of  the 
church,"  except  so  far  as  he  is  prohibited  or  limited  by  the  written  law  of  the  church. 

And  these  respondents,  further  answering,  deny  that  the  action  of  the  general  con- 
vention of  said  church  of  1868,  on  the  subject  of  canons,  has  not  yet  been  officially 
published  and  declared ;  but,  on  the  contrary,  respondents  aver  that  the  action  of  the 
said  general  convention  of  1868,  on  the  subject  of  canons,  has  been  officially  published 
and  declared,  and  such  action  is  embraced  in  a  book  or  volume  entitled,  "  Digest  of  the 
canons  for  the  government  of  the  Protestant  Episcopal  church,  in  the  United  States  of 


34        TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

America,  passed  and  adopted  in  general  conventions  of  1859, 1862,  1865  and  1868,  to- 
gether with  the  constitution,"  and  which  booii  or  volume  these  respondents  beg  leave 
to  submit  through  their  counsel  to  this  honorable  court,  and  pray  that  the  same  may 
be  taken  as  a  part  of  their  answer.  And  respondents  further  say,  according  to  their 
best  knowledge,  information  and  belief,  that  said  book  or  volume  contains  the  constitu- 
tion and  all  the  canons  of  the  said  Protestant  Episcopal  church  in  the  United  States, 
now  in  force  ;  that  is  to  say,  the  constitution  and  canons  of  the  general  convention  of 
such  church. 

And  these  respondents  further  answering,  each  for  himself,  says,  that  on  the  8th  day 
of  July,  A.  D.  lSf)9,  the  standing  committee  of  the  diocese  of  Illinois,  appointed  these 
respondents,  assessors,  for  the  trial  of  the  complainant,  upon  charges  preferred  against 
him  by  Rev.  George  F.  Cushman,  D.  D.,  Rev.  Richard  F.  Sweet,  D.  D.,  and  L.  B.  Otis, 
and  at  the  same  lime  elected  the  respondent,  Rev.  Samuel  Chase,  D.  D.,  president  of 
the  court,  in  case  of  a  contingency  provided  for  in  section  3,  canon  20,  of  the  diocese  of 
Illinois,  and  of  such  appointments,  each  for  himself,  says,  he  was  duly  notified  by  the 
bishop  of  Illinois  and  requested  to  attend  at  the  chapel  of  the  cathedral  of  Saints  Peter 
and  Paul,  on  the  corner  of  Washington  and  Peoria  streets,  in  the  city  of  Chicago,  on 
the  21st  day  of  July,  1869,  at  10  o'clock  in  the  forenoon,  to  act  as  such  assessors,  and  in 
obedience  to  such  request,  these  respondents  did,  as  they  were  in  duty  bound,  attend 
at  said  time  and  place,  and  organize  as  an  ecclesiastical  court,  according  to  the  provis- 
ions of  said  canon  20  of  the  diocese  of  Illinois  aforesaid,  for  the  trial  of  the  said  com- 
plainant, under  the  charges  aforesaid,  the  respondent  Rev.  Samuel  Chase,  D.  D.,  acting 
as  pre:ddent  of  the  court,  the  right  reverend,  the  bishop  of  Illinois,  having  declined  to 
prosecute  or  sit  on  such  trial.  And  further  answering,  these  respondents  say,  that  at 
the  same  time  and  place,  the  said  Rev.  George  S.  Cushman,  D.  D.,  Rev.  Richard  F. 
Sweet  and  L.  B.  Otis,  appeared  as  prosecutors,  and  were  also  represented  by  their 
proctor  and  advocate,  and  at  the  same  time  and  place  the  complainant  appeared  before 
these  respondents  in  person,  and  by  his  proctors  and  advocates,  and  thereupon  the  pre- 
senters submitted  a  presentment,  a  copy  of  which  is  referred  to  in  tlie  bill  of  complaint, 
and  asked  that  the  complainant  be  requested  to  plead  to  the  same,  when  the  com- 
plainant, by  one  of  his  proctors,  requested  the  proctor  for  the  presenters  to  produce  the 
authority  under  which  the  presentment  was  made,  and  thereupon  the  proctor  for  said 
presenters  produced  a  paper,  a  copy  of  which  is  referred  to  in  the  bill,  and  afterward, 
and  on  the  same  day,  and  at  the  same  place,  the  said  complainant  presented  exceptions 
to  the  said  paper  to  these  respondents,  vi'ho  were  there  and  then  acting  as  such  ecclesi- 
astical court,  a  copy  of  which  exceptions  are  referred  to  in  the  said  bill  of  complaint ; 
and  the  respondents  as  such  court,  having  heard  the  argument  of  counsel  and  given  due 
consideration  to  the  same,  overruled  such  exceptions. 

And  respondents  further  answering,  say,  that  the  citation,  a  copy  of  which  is  referred 
to  in  the  said  bill  of  complainant,  was  at  the  same  time  and  place  produced  before  the 
respondents  there  and  then  acting  as  such  ecclesiastical  court,  and  exceptions  thereto 
were  filed  by  the  said  complainant,  and  which  exceptions  are  also  referred  to  in  the 
bill ;  and  after  hearing  argument  of  counsel  for  complainant  and  said  presenters,  and 
after  having  given  the  same  due  consideration,  such  exceptions  were  overruled  by  these 
respondents  acting  as  such  court.  And  on  the  same  day  the  complainant  demanded  the 
privilege  of  examining  these  respondents  for  the  purpose  of  ascertaining  whether  any 
or  either  of  them  had  formed  or  expressed  any  opinion  as  to  the  guilt  or  innocence  of 
him  the  said  complainant,  and  these  respondents  declined  to  submit  to  such  examina- 
tion, but,  at  the  same  time,  offered  to  submit  to  an  examination  as  to  whether  or  not 
cither  of  them  was  connected  with  the  complainant  by  relationship  or  marriage,  or  was 
not  entitled  to  a  seat  in  the  convention,  as  provided  in  said  canon  20 ;  but  said  com- 
plainant failed  to  n^ake  any  examination  on  such  grounds  and  took  no  exceptions  in  re- 
spect thereto.  And  at  the  same  time  and  place  said  complainant  entered  and  filed 
before  these  respondents,  then  and  there  acting  as  such  ecclesiastical  courts,  his  excep- 
tions to  the  aforesaid  presentn^ent,  and  which  exceptions,  after  argument  by  counsel 
for  said  complainant,  and  also  for  said  presenters,  and  after  consideration  by  these 
respondents,  were  overruled  by  respondents  acting  as  such  court,  namely,  at  a  session 
of  such  court  on  the  22nd  day  of  July,  1869,  to  which  time  they  had  previously 
adjourned. 

And  these  respondents  further  answering  say  that  afterward,  at  the  session  of  respon- 
dents as  such  court  on  said  22d  daj'  of  July,  1869,  at  said  place,  the  said  complainant 
being  present  in  person  and  represented  by  counsel,  the  counsel  for  the  presenters  asked 
that  the  plea  of  the  said  complainant  to  said  presentment  be  called  for,  whereupon  the 
respondent,  the  Rev.  Samuel  Chase,  D.  D.,  as  the  presiding  ofl&cer  of  said  ecclesiastical 
court,  demanded  of  said  complainant  a  plea  of  guilty  or  not  guilty  of  the  matters  charg- 
ed in  the  presentment,  and  the  complainant  having  failed  to  plead  the  confession  or  de- 
nial, respondents  considered  him  as  denying  the  facts  charged  in  the  presentment,  and 


TRIAL   OF   REV.    CHARLE3   EDWARD    CHENEY.  35 

under  the  provision  of  canon  20  of  the  diocese  of  Illinois  aforesaid,  and  the  clerk  of  the 
court  accordingly  entered  the  plea  of  not. ijuilty.  Whereupon,  afterward,  at  the  same 
time  and  phic^,  the  complainant  still  hein^  present,  one  of  the  proctors  and  advocates 
for  said  complainant  asked  these  respondents,  acting  as  such  court,  for  a  continuance  of 
the  trial,  insisting  that  under  the  canons  of  the  church,  complainant  was  entitled  to 
further  time,  and  staling  also  that  complainant  had  subpfcnaed  no  witnesses  and  was 
not  ready  to  proceed  to  trial;  that  thereupon  the  proctor  for  the  presenters  responded 
in  argument  against  a  postponement  or  continuance,  and  in  reply  to  which  argument, 
complainant's  said  counsel  again  demand  that  by  a  proper  construction  of  the  canons, 
the  trial  should  not  then  proceed,  and  that  it  was  not  a  continuance  really  that  was 
asked  for,  and  that  a  construction  should  be  given  by  these  respcmdents,  as  such  court, 
to  the  diocesan  canon  No.  30  aforesaid,  by  which  30  days'  notice  should  be  given  to  the 
complainant  of  the  time  and  place  of  the  next  meeting  of  the  court  yet  to  he  tixed 
upon  ;  but  respondents  say  that  complainant  made  no  showing  i^s  to  having  any  defence 
on  the  merits,  nor  as  to  having  any  material  witnesses,  nor  as  to  having  exercised  any 
diligence  to  procure  the  attendance  of  any  witnesses,  and  after  having  considered  the 
arguments  of  counsel,  these  respondents,  acting  as  such  court,  overruled  such  motion 
or  request  for  the  continuance  or  postponement  of  said  trial,  or  the  objection  to  pro- 
ceeding with  the  trial  whichever  construction  such  action  of  said  counsel  lor  complain- 
ant may  have  properly  borne. 

And  these* respondents  further  say  that,  within  a  few  minutes  after  the  decision  last 
referred  to,  these  respondents  were  served  with  the  writ  of  injunction  and  summons 
from  this  honorable  court,  and  hence  proceeded  no  further,  except  to  adjourn  until  the 
following  day. 

And  these  respondents  further  answering,  say  that  as  they  are  advised  by  their  coun- 
sel and  verily  believe,  they  constitute,  and  are  an  eccesiastical  court  of  the  Protestant 
Episcopal  church  in  the  diocese  of  Illinois,  duly  constituted  and  organized  for  the  trial 
of  the  said  complainant,  and  upon  the  charges  made  against  him  in  said  presentment, 
having  a  presiding  officer  and  a  clerk  (members  of  the  court),  and  having  jurisdiction 
of  the  subject  matter  set  forth  in  the  presentment  and  of  the  person  ot  the  said  complain- 
ant; and  they  respectfully  submit  that  this  honorable  civil  tribunal  has  no  rightful 
jurisdiction  to  interfere  with  their  duties  and  prerogatives  as  such  ecclesiastical  tribu- 
nal. 

And  further  answering,  these  respondents,  each  for  himself,  expressly  denies  that  he 
is  largely  or  in  anywise  influenced  by  the  bishop  of  Illinois  in  tlie  matter  of  the  said 
trial,  or  that  he  (each  of  these  respondents  speaking  for  himself)  labors  under  the  sup- 
position that  sentence  of  deposition  from  the  ministry  will  be  passed  upon  complainant ; 
and  each  of  thuse  respondents  expressly  denies  all  prejudice  and  bias  against  said  com- 
plainant in  the  matter  in  the  said  presentment  and  charges  against  him,  and  in  the  mat- 
ter of  the  the  trial  thereunder,  that  can  in  any  way  or  manner  prevent  a  fair  and  impar- 
tial hearing  and  determination  of  the  case  againgt  said  complainant ;  and  each  of  these 
respondents  say  thiii  as  a  member  of  said  ecclesiastical  court  it  is  and  has  been  his  inten- 
tion and  desire  to  give  said  complainant  a  fair  and  impartial  trial,  and  to  administer  the 
laws  of  the  ciiurch  in  the  premises  without  favor  and  prejudice,  and  accortling  to  ths 
principles  of  justice  and  right  as  applied  to  the  facts  that  shall  or  may  be  proven,  in  the 
case,  and  that  he  will  be  gratified  if  it  shall  transpire  from  the  evidence  that  »aid  com- 
plainant is  not  guilty  of  the  charges  against  him  ;  and  each  of  these  respjiidents  aver 
that  he  has  no  present  opinion  as  to  whether  said  complainant  is  guilty  or  innocent. 
And  this  respondent,  i.  VV.  Snyder,  answering  for  himself  expressly  denies  that  he  has 
formed  and  expressed  an  opinion  of  the  complainant's  guilt  in  the  matter  of  said  pre- 
sentment and  charges. 

And  these  respondents  further  answering  aver  that,  as  they  are  informed  and  verily  be- 
lieve, in  the  year  1863,  and  prior  to  the  meeting  of  the  annual  diocesan  convention,  ques- 
tions arose  touching  the  true  construction  of  said  canon  20,  of  the  said  diocese  of  Jllinois, 
and  the  mode  of  proceedings  there  under  for  the  trial  of  a  priest  or  presbyter  of  said 
church,  in  a  certain  cause  then  pending  in  this  honorable  court,  wherein  llev.  E.  VV. 
Hagar  was  complainant  and  Rt.  Rev.  Henry  J.  Whitehouse,  bishop  of  Illinois,  and  others 
were  respondents,  in  which  cause  it  appeared  that  the  same  course  of  proceedings  had 
been  substantially  had,  as  the  complainant  alleges  has  been  taken  in  this  case  now  before 
the  court,  as  will'more  fully  appear  and  at  large  by  reference  to  the  pleadings  and  papers 
therein  now  on  file  in  the  court,  and  to  which  these  respondents  beg  leave  to  refer  as  a 
part  of  this  their  answer,  and  by  means  whereof  the  attention  of  the  law-making  power 
of  the  said  Protestant  Episcopal  Church  in  the  diocese  of  Illinois,  namely,  the  conven- 
tion of  said  diocese  at  the  regular  annual  session  held  in  September,  1863,  was  called  to 
the  construction  which  had  been  given  to  said  cannon  20  aforesaid  of  said  diocese  by  the 
bishop  of  Illinois  in  his  answer  in  said  cause  ;  and  the  question  arose  in  said  convention 
as  to  the  propriety  of  amending  said  canon,  but  after  due  consideration  thereof  the 


36 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 


whole  matter  was  laid  upon  the  table  and  the  said  answer  of  the  bishop,  together  with 
the  opinion  and  dicision  of  this  honorable  court  and  the  argument  of  the  solicitor  for 
the  respondents  in  said  cause,  were  by  said  convention  ordered  to  be  published  Avith 
the  journal  of  said  convention,  which  was  accordingly  done,  as  will  more  fully  appear 
by  reference  to  the  printed  proceedings  of  the  said  convention  ready  to  be  xjroduced  in 
court,  and,  as  these  respondents  are  advised  and  believe,  said  convention  approved  the 
construction  and  the  mode  of  proceeding  adopted  and  pursued  in  that  case,  which  res- 
pondents understand  to  be  conclusive  of  the  questions  now  made  by  the  complainant 
under  said  canon. 

And  the  respondents  further  answering  deny  that  irreparable  injurj'  can  result  to  the 
complainant  from  the  trial  under  said  presentment,  within  the  meaning  of  the  rules  of  a 
court  of  chancery,  as  they  are  advised  and  believe ;  and  they  further  deny  any  con- 
federation, conspiracy  or  misconduct  on  the  part  of  these  respondents  in  the  matter  of 
the  said  presentment  or  trial. 

And  now,  having  fully  answered,  these  respondents  pray  to  be  dismissed  hence  with 
their  costs,  in  this  behalf  most  wrongfully  sustained.  And,  as  in  duty  bound,  they  will 
ever  pray. 

SAMUEL  CHASE, 
THOxMAS  N.  BENEDICT, 
JOHN  BENSON, 
HENRY  N.  PIERCE, 
A.  W.  SNYDER. 

S.  CORNING  JUDD,  Solicitor  and  of  Counsel  for  Respondents. 
VV.  C.  GOUDY,  of  Counsel. 

Together  with  the  afladavit  of  Bishop  Whitehouse  as  follows  : 


AFFIDAVIT  OF  THE   BISHOP. 

The  Rt.  Rev  .  Henry  John  Whitehouse,  being  first  duly  sworn,  deposes  and  says, 
"  That  he  is  the  bishop  of  Illinois  ;  that  although  the  deponent  is  not  made  a  party  in 
the  bill  of  complaint,  he  is,  nevertheless,  formerly  introduced  into  the  same.  By  a  pro- 
fessed recital  of  a  certain  interview  between  the  complainant  and  the  deponent,  various 
charges  are  alleged  or  implied,  as  tend  to  show  an  unfounded  and  malevolent  prejudice 
against  the  complainant ;  and  the  etfect  of  this  prejudice,  or  bias,  is  affirmed  to  be  such 
as  not  only  to  debar  the  complainant  from  a  fair  trial  in  this  pending  case,  but  which 
would  operate  in  any  case  in  which  the  said  bishop  should  at  any  time  obtain  the  oppor- 
tunity canonicaly,  to  wit,  in  conformity  with  the  diocesan  canons  of  the  diocese  to  have 
your  orator  presented  and  brought  to  trial  for  an  alleged  offence  the  said  bishop  would 
be  prejudiced  and  biased  against  your  orator,  and  that  such  prejudice  and  bias  would 
detrimentally  atfect  your  orator  in  the  premises."  If  the  deponent  were  to  admit  the 
prejudice  thus  described,  which  he  does  not  admit,  but,  on  the  contrary,  wholly  disa- 
vows, the  inference  therefrom  sought  to  be  set  up  would  be  extravagant  and  irrelevant. 
The  plea  which  is  set  up  is,  in  reality,  to  the  effect  that  if  the  bishop  of  the  diocese 
whose  express  duty  it  is  "  to  inspect  the  behavior  of  his  clergy"  (Can.  13.  11  Dig.), 
should  at  any  time  form  an  unfavorable  opinion  of  the  specific  or  general  behavior  of  a 
clergyman,  or  deem  that  a  clergyman  in  any  given  instance  did  act  unworthily,  and 
the  offence  if  proven  would  submit  him,  tlie  clergyman,  to  punishment,  then  practi- 
cally, that  minister  must  be  morrally  exempt  from  liability  to  trial  by  that  bishop,  and 
could  not  be  tried  for  any  such  offence  because  "  the  bishop  would  be  prejudiced  and 
biased  against  that  clergyman  so  as  detrimentally  to  effect  said  clergyman  in  the  premi- 
ses." 

The  deponent  may. consider  in  the  case  of  the  signer  of  "  the  protest "  thus  irrelevant- 
ly introduced,  that  such  signer  is  seriously  affected  in  a  moral  estimate  of  characters, 
and  if  the  bishop  should  be  called  upon  to  give  "  a  testimonial  which  shall  set  forth  the 
true  standing  and  character  "  which  testimonial  is  called  "  letters  dismissory,"  the  said 
bishop  might  be  conscientiously  bound  to  state  what  did  impeach  the  standing  reputa- 
tion of  the  applicant  for  such  letters,  subject,  however,  to  the  discrimination  in  the  ac- 
ceptance or  rejection  of  such  certificate  by  the  bishop  to  whom  it  might  be  addressed. 
But  this  state  of  things  might  exist  without  subjecting  the  deponent  to  an  inferential 
charge  of  such  malignant  prejudice  as  would  disqualify  him  from  his  official  duty  in  a 
trial  avowedly  "  according  to  the  canons  "  on  a  different  count  altogether. 

This  deponent,  therefore,  solemnly  denies  all  undue  bias,  prejudice,  or  enmity  of  any 
kind  or  degree  which  would  consciously  affect  him  in  the  functions  of  discipline  in  this 
case. 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.        37 

The  deponent  admits  an  interview  sought  and  had  with  said  complainant,  in  his  own 
liouse,  on  Monday  P.  M.,  May  31  last  past.  but.  denies  that  eitlier  the  purpose  of  the 
deponent  in  said  interview,  or  that  his  desire  in  any  part  or  circumstance  of  it  wliatso- 
ever  was  to  induce  the  complainant  "to  admit  or  assume  that  he,  your  orator,  would 
admit  that  he,  your  orator,  had,  in  the  administration  of  that  office  of  the  service  of  the 
Protestant  Episcopal  church,  in  this  country  known  as  the  Public  Haptism  of  Infants, 
omitted  the  word  '  regenerate'  wherever  occiirrin<;,  or  where  sometimes  occurring  in 
said  service."  On  the  contrary  he  solemnly  declares  that  the  complainant  of  his  own 
free  will  and  spontaniety  did  narrate  to  him  that  the  complainant  did  omit  the  ."aid 
word  or  words  because  he  could  not  conscientiously  use  them  ;  that  his  practice  had 
been  for  considerable  time  so  to  do,  and  he  freely  gave  to  the  deponent  ami)le  narrative 
to  that  efl'cct,  and  which  assured  him  of  a  fact  which  he  was  jniined  to  hear  thus  i)lainly 
declared,  because  he  had  hoped  that  it  did  not  exist.  And  on  this  point  of  tlie  volun- 
tary and  full  statement  of  the  fiict  of  such  omission  in  the  office  of  infant  baptism,  and 
of  the  specific  word  or  words  omitted  the  deponent  cannot  be  mistaiten,  because  the 
whole  conversation  which  followed,  and  the  effort  of  the  deponent  during  a  protracted 
intei  vi(!W  was  to  urge,  as  earnestly  and  affectionately  as  he  could,  divers  arguments,  ap- 
peals, and  "  admonitions"  to  induce  the  complainant  to  change  his  views  on  his  as- 
sumed meaning  of  the  word  "  regenerate"  and  "regeneration"  as  used  in  that  baptis- 
mal otlice,  and  to  prevail  on  him  to  conform  strictly  to  the  prescribed  formulary  of  the 
church  in  the  administration  of  holy  baptism  to  infants.  The  complainant  "  did  decline 
to  promise  not  to  omit  the  said  word  in  future"  but  solely  as  expressed,  on  the  ground 
of  conscience,  and  not  on  the  ground  declared  in  tlie  bill  of  complaint  or  implied  of  re- 
ticence lest  "  thereby  he  should  admit  that  he  had  done  so ;"  i.  <■.,  omit  the  word  or 
words.  And  further  is  this  certain  to  the  deponent  from  the  actual  subject  and  object 
of  his  visit  to  said  complainant  on  the  occasion  named.  The  deponent  had  been  inform- 
ed that  the  Rev.  Mr.  Cheney  had  stated,  not  confidentially,  but  as  a  fact  honorable  to 
himself,  and  in  solution  of  a  conscientious  difficulty,  that  he  did  not  use  parts  or  ex- 
pressions objectionable  to  him  in  baptising  infants,  but  did  omit  the  word  or  words  in 
question.  And,  while  not  admitting  the  necessity  of  the  facts  being  brought  to  the 
knowledge  of  this  deponent  by  "public  rumor,"  and  while  expressly  denying  the  neces- 
sity of  the  same,  yet  this  deponent  states  that  while  his  first  information  miglit  be  taken 
as  reasonably  equivalent  to  that  ground  of  proceeding,  yet  before  your  deponent  did 
proceed,  issue  a  commission,  or  take  the  incipient  steps  for  the  c-ame,  the  facts  alleged 
had  become  to  a  large  extent  "  public  rumor"  through  the  congregation  of  Christ 
church,  and  by  publications  in  the  daily  newspapers  of  the  city  of  Chicago.  But  the  de- 
ponent ventured  to  express  to  his  informers  his  disbelief  of  this  fact,  and  that  the  state- 
ment made  was  a  mistake,  and  hopefully  trusted  that  it  would  be  proved  to  be  so  by 
the  disavowal  of  the  complainant. 

In  the  interview  of  May  31  last  past,  the  one  throughout  in  question,  the  deponent 
opened  the  conversation  by  the  statement,  in  substance.  "  That  he  had  called  on  what 
in  one  aspect  Avas  a  question  of  discipline,"  on  which  he  stated  that  he  introduced  as 
such  in  order  to  put  the  complainant  on  his  proper  guard,  "  but  that  he  hoped  and  be- 
lieved that  what  he  was  about  to  say,  would  be  found  to  be  without  foundation." 

The  complainant  made  some  personal  comments  on  the  statement  after  the  same  had 
been  repeated  to  him.  The  complainant  then  substantially  .said  :  "I  cannot,  however, 
and  do  not  wish  to  deny  that  I  do  not  use  the  baptismal  office  for  infants  as  it  is.  What 
you  have  heard  is  a  fact,  and  it  is  true  that  I  do  omit  the  clause,  which  declares  the 
child  to  be  '  regenerate,'  from  the  service.  I  cannot  conscientiously  say  so  for  myself 
or  my  congregation."  On  this  the  complainant  spoke  at  this  time,  and  at  several  times 
after  in  the  conversation  with  explicit  detail.  The  deponent  expressed,  in  answer,  his 
deep  pain  and  disappointment  because,  in  his  esteem,  it  was  a  serious  matter,  and,  if  it 
were  persevered  in  lay  said  complainant,  would  necessarily  compel  him,  as  bisho]),  to 
bring  said  complainant  to  trial  therefor,  in  explanation  of  which  view  of  the  importance 
of  the  issue  he  gave  several  reasons.  But  the  deponent  did  further  say.  and  renewed  the 
statements  afterward  in  the  interview,  that,  in  all  he  should  now  say,  he  was  to  be  un- 
derstood to  speak  officially,  and  in  the  exercise  of  the  bishop's  privilege  of  "godly  ad- 
monition," as  fully  as  such  could  apply  to  the  case. 

For  on  examination  of  this  "  godly  admonition  "  he  begs  to  refer  to  the  question  and 
answer  in  the  ordering  of  priests.  "  TJic  Bishop — Will  you  reverently  obey  your  bish- 
op and  other  chief  ministers  who,  according  to  the  canon  of  the  church,  may  have  the 
charge  and  government  over  you,  following  with  a  glad  mind  and  will  their  godly  ad- 
ministrations, and  submitting  yourself  to  "their  godly  judgments?  Answer — I  will  dc 
so  the  Lord  being  my  helper. 

This  deponent  avers,  and  as  before  God,  that  according  to  his  ability,  during  the 
whole  interview  he  spoke  to  your  orator  seriously,  truthfully,  and  affectionately  as  a 
spiritual  father  to  his  son  in  the  faith.  He  explained  the  terms  and  the  freedom  of  in- 
terpretation which  had  always  been  allowed,  admitted  the  privilege  of  complaint  to  ex- 


38 


TRIAL    OF    REV.    CHARLES   EDWARD    CHENEY. 


plain  "  regeneration  "  in  its  doctrine  or  ecclesiastical  use,  as  lie  the  complaint  received 
the  same,  nnd  only  required  tliat  on  his  complaint's  honor  as  a  clergyman,  .he  would,  . 
while  in  the  deponent's  jurisdiction,  promise  to  use  the  baptismal  otiice,  in  question  as  • 
prescribed  ;  on  which  promise  thus  privately  given,  the  deponent  would  be  fully  satisfi- 
ed, the  matter  should  terminate  and  the  conversation  might  be  regarded  as  private  to 
the  parties. 

To  all,  however,  this  deponent  understood  your  orator  to  say  at  several  times  "That 
he  could  not  and  would  not  use  the  expression  in  the  public  baptism  of  infants,"  but 
did  not  scruple  to  use  it  in  the  "  baptism  of  those  of  riper  years,"  because  he  satisfied 
himself  beforehand  that  the  candidate  was  regenerate. 

This  deponent,  near  the  close  of  the  interview,  used  the  following  expression  or  one 
exactly  equivalent,  which  went  unchallenged  by  complainant,  whose  maimer  during  the 
interview  did  not  evince  any  sense  of  injury  or  offence  from  the  words  or  manner  of 
this  deponent,  this  deponent  said:  "I  have  intended  to  speali,  and  I  believe  I  have 
spoken  to  you  in  all  this  as  I  would  to  one  of  my  own  sons." 

The  allusion  to  the  "protest"  did  not  occur  until  the  conversation  was  finished  and 
this  deponent  was  ready  to  leave. 

This  deponent  desires  further  to  answer  and  explain  what  is  declared  by  complainant 
in  the  expression  of  the  bill  of  complainant  "desired  him"  said  complainant  "to  ad- 
mit or  assume  that  he  would  admit." 

The  facts  in  the  case  were  so  distinctly  declared,  and  the  conscientious  right  and  duty 
to  do  as  complainant  declared  he  did  and  would  do  was  so  claimed  and  asserted,  that 
this  deponent  was  in  doubt  whether  it  was  to  be  taken  *^pro  confesso^^  as  involving  the 
ofl'ence  and  misconduct  impliedly  also. 

This  deponent  asked  the  question  to  call  attention  to  this  important  distinction,  and 
did  receive  for  answer  that  he,  said  complainant,  did  not  wish  to  admit  anything  affect- 
ing his  interests  in  the  case  ;  which  reserve  this  deponent  told  him  was  paid  for,  and 
^dvised  him  not  to  act  without  counsel,  and  proposed  that  he  should  take  time  for 
reflection  before  giving  what  the  deponent  would  consider  his  formal  answer  on  the 
alternative  as  presented,  "  either  to  conform  to  the  prescribed  ritual  in  the  matter  in 
issue  or  stand  trial  for  the  fact  of  omitting  the  word  or  words  involved." 

Said  complainant,  in  the  close  of  the  interview,  in  compliance  Avith  the  suggestion, 
asked  one  week  for  that  consideration.  This  was  cheerfully  granted,  with  a  very 
strong  expectation  that  complainant  would  recede  from  the  determination  expressed 
during  the  conversation,  and  agree  to  use  the  service  as  prescribed. 

At  the  expiration  of  the  time  this  deponent  received  a  note  from  comi^lainant  of 
which  the  following  is  a  true  copy  from  the  original : 

"Christ  CntiRCH  Rectory,  Chicago,  June  8,  1869  —  Rt.  Rev.  and  Dear  Sir:  —  I 
regret  that  circumstances  compelled  me  to  delay  for  a  few  hours  the  answer  Avhich  I 
promised  to  send  you  in  one  week  from  our  conversation,  on  Monday  the  31st  ult. 

"  After  the  most  serious  and  prayerful  deliberation,  I  can  only  say  that  I  have  been 
able  to  arrive  at  no  other  conclusion  than  that  already  expressed  to  you. 

Verv  truly  yours,  Charles  Edward  Chenet. 

"Rt.  Rev.  H.  J.  Whitehouse,  D.  D." 

This  letter  this  deponent  understood  and  now  understands  to  refer  him  entirely  to 
the  conversation  of  May  31,  particulars  of  which  have  been  detailed. 

The  conversation  had  beyond  all  possible  doubt,  admitted  the  facts  alleged,  in  the 
practice  of  complainant,  to  wit :  The  omission  of  the  word  "  regenerate  "  and  the  rel- 
ative change  of  the  baptismal  office.  It  had  affirmed  his  conscientious  scruples  prevent- 
ing his  use  of  these  terms,  and  his  resolution  not  to  reform  his  practice  in  this  respect, 
but  to  continue  as  he  narrates  he  had  done.  It  did  not  involve  the  confession  of  mis- 
conduct, or  wrong,  or  liability  to  trial,  or  to  any  special  penalty  for  so  doing.  This 
deponent  understood  complainant  certainly  not  to  admit,  and  to  this  understanding 
this  deponent  has,  he  believes,  strictly  adhered  in  his  official  action. 

This  deponent  further  avers  that  if  "deposition"  or  any  penal  sentence  was  at  any 
time  mentioned  in  the  conversation  thus  in  question,  it  Avas  not  in  local  or  any  personal 
pre.iudice  to  the  case  of  complainant,  if  lie  should  be  brought  to  trial,  but  only  as  one 
of  the  possible  or  probable  consequences  of  the  persistence  in  a  wayward  and  unlawful 
course  in  which  complainant  claimed  the  necessity  and  right  to  prescA-ere  the  "godly 
admonition"  of  his  bishop  notAvithstanding.  But  this  deponent  solemnly  declares 
that  he  did  not  at  any  time  or  any  way,  say  "that  there  could  be  but  one  result  to  a 
trial  and  that  deposition,"  because  he  has"  no  control  over  the  finding  of  a  sentence, 
but  has  judicial  power  to  abate  a  sentence  found  to  one  less  severe.  And  this  deponent 
knows  that  there  are  other  sentences  of  "admonition"  and  "suspension"  definite  or 
contingent.  If  in  general  conversation  deponent  has  ever  alluded  to  such  a  final  issue 
as  deposition,  it  has  not  been  as  an  inevitable  finding  of  an  ecclesiastical  court,  but  as 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.         39 

an  extreme  result  to  which  comphiinant  by  contumacy  and  obstinate  disobedience, 
might  himself  press  the  penal  consequences. 

This  deponent  most  solemnly  denies  all  and  every  form  of  prejudice  which  could 
unlawfully  affect  the  case  of  complainant  in  the  ecclesiastical  coiirt  before  whicli  he 
stands  canonically  and  truly  impleaded,  eitlier  in  the  composition  of  tlie  court  or  its 
jjroceedings,  so  far  as  the  knowledge  and  belief  of  this  deponent  can  go  ;  but  in  wliieh 
this  deponent  has  had  no  material  agency,  except  in  the  selection  of  eight  names  of 
presbyters  from  whicli  the  court  might  be  chosen,  and  whom  he,  as  bishop,  avers  are 
among  the  most  experienced  and  honored  clergy  of  his  diocese,  and  from  these  eight 
said  complainant,  had  he  chosen,  might  have  discriminated  three  only  as  the  assessors 
for  his  trial. 

And  further  this  deponent  saith  not. 

Henry  J.  Whitehouse,  Bishop  of  Illinois. 

And  thereupon  a  motion  to  dissolve  the  injunction  was  filed,  and  notice  given  com- 
plainant's counsel  that  it  would  be  called  up  on  the  morning  of  the  27th  July,  at  10 
A.M. 


ARGUMENT  ON  MOTION  TO  DISSOLVE  INJUNCTION. 

Tuesday,  July  27,  1869. 

Judge  Jamesox  took  his  seat  at  10  A.  M.  The  court  room  was  filled  with  interested 
spectators. 

The  Court  — I  believe  it  is  understood  that  the  motion  to  dissolve  the  injunction  in 
the  case  of  Rev.  Mr.  Cheney  is  to  be  taken  up  this  morning.  Are  counsel  ready  to  pro- 
ceed? 

Mr.  Fuller  —  I  will  submit  a  resolution  for  the  continuance  of  the  hearing  based 
upon  aflSdavit. 

Mr.  Fuller  here  read  an  affidavit  of  the  absence  of  an  important  witness,  whose  depo- 
sition it  was  desired  to  take  on  complainant's  behalf,  before  the  motion  should  be  heard. 

The  Court  — The  affidavit  does  not  give  the  name  of  the  witness,  and  must  be 
amended. 

Mr.  TuoMPSON  — We  may  desire  to  amend  our  bill  which  was  hurriedly  drawn. 

The  Court  — Should  a  proper  showing  hereafter  be  made,  it  is  within  the  discretion 
of  the  court  to  allow  amendments  without  prejudice  to  the  injunction,  but  as  the  case 
now  stands,  the  motion  should  be  heard  upon  the  papers  as  they  arc. 

Hon.  S.  Corning  Judd  then  addressed  the  court  in  an  eloquent  and  learned  argument 
in  support  of  the  motion  to  dissolve  the  injunction.  He  said  he  appeared  not  only  for 
the  respondents  but  for  the  great  body  of  the  Episcopal  church,  and  the  great  majority 
of  the  christian  people  of  every  name  and  denomination,  because  if  civil  courts  '-an  in- 
terfere with  religious  liberty  and  the  powers  of  spiritual  courts,  all  were  alike  inten-sted 
in  the  question,  and  lest  they  may  be  subjected  to  restraint  in  the  exercise  of  sucli  dis- 
cipline as  might  be  essential  for  the  preservation  of  their  faith,  and  to  protect  themselves 
against  the  inroads  of  the  vicious  and  the  vile. 

He  reviewed  the  allegations  of  the  bill  at  length,  and  contended  they  were  entirely 
insufficient.  He  particularly  dwelt  upon  the  want  of  showing  of  any  irreparabic  inju- 
ry, and  contended  even  if  deposition  were  inflicted,  the  world  was  still  before  the  com- 
plainant where  to  choose. 

He  insisted  there  was  a  common  law  of  the  church  as  well  as  a  constitution  and  can- 
ons thereof,  and  that  at  common  law,  offences  might  be  proceeded  ft>r  as  well  as  under 
the  statute. 

The  constitution  and  canons,  general  and  diocesan,  occupy  the  relation  of  articles  of 
submission  to  arbitration  in  all  matters  of  discipline  and  complainant  is  a  party  to  and 


40         TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

bound  by  them.  He  therefore  agreed  to  the  mode  of  selecting  assessors  and  the 
action  of  the  standing  committee  in  selecting  the  respondents  was  his  action.  No 
right  of  challenge  exists  unless  the  selection  provided  for  be  such.  Again  the  assessors 
are  side  judges,  next  in  authority  to  the  bishop  who  may  preside  as  judge.  As  to  the 
meaning  of  the  w^ord  "assessors,"  he  referred  to  Webster's  and  Worcester's  diction- 
ary. Challenge  is  not  allowed  where  a  judge  passes  on  focts,  as  in  courts  Maritime  and 
in  Equity.  The  assessors  in  this  instance  are  lilte  Masters  in  chancery.  He  referred  to 
the  senate  sitting  as  a  High  Court  of  Impeachment  as  analogous,  and  said  the  right  of 
challenge  was  not  allowed  there.  The  right  to  challenge  a  judge  was  an  absurdity  ; 
counsel  might  as  well  challenge  this  court  because  the  injunction  was  granted  by  it.- 

The  CouBT  —  I  may  state  that  I  have  not  formed  an  opinion  generally,  but  only  that 
the  case  made  by  the  bill  justified  the  issuance  of  the  w^it  in  the  first  instance. 

Mr.  JUDD  —  Said  he  did  not  mean  to  be  otherwise  understood.  As  to  the  objection 
to  the  commission  the  accused  had  nothing  to  do  with  that  paper.  An  accused  might 
as  well  go  behind  the  venire  to  summon  a  grand  jury. 

As  to  twenty  days  service  of  citation  and  thirty  of  notice  for  trial,  the  canon  was  sub- 
ject to  no  such  construction.  Why  give  the  accused  two  notices?  The  intention  of  the 
twenty  day  restriction  was  to  ensure  twenty  days  over  and  above  time  for  travel  after 
service  and  before  appearance. 

By  section  7,  the  court  is  constituted  by  the  appearance  "  of  the  requisite  number  " 
which  could  only  be  upon  selection  and  they  are  then  to  proceed  with  the  trial  wiiich 
shows  it  was  not  intended  that  thirty  days  notice  should  then  be  given. 

Counsel  contended  that  there  had  been  a  legislative  construction  of  the  canon  in  sup- 
port of  his  views.  The  w"hole  matter  was  brought  before  the  convention  of  1863  which 
published  the  bishop's  answer,  and  Judge  Arington's  argument  in  the  Hager  case  as 
part  of  the  journal  and  declined  to  take  other  action. 

Mr.  JuDD  again  denied  that  irreparable  damage  would  or  could  result  in  the  prem- 
ises, and  cited  Mobertson  v.  Bullions,  1  Kernan  265,  to  the  point  that  Mr.  Cheney's  parish 
might  employ  him  non  obstante  deposition.  The  irreparable  injury  to  avert  which  Equity 
will  interfere  must  be  to  property,  6  John.  Ch.  499,  2  Stock.  70.  Equity  will  not  interfere 
to  protect  character,  8  Paige,  ch.  24/  Ston/s  Eq.  Jiir.,  S.  948  a. 

Conipt.  avers  he  believes  himself  not  guilty  of  any  offence,  but  he  don't  say  he  did 
not  omit  the  words.    He  relies  on  technicalities. 

Civil  courts  in  any  case  shoixld  not  interfere  until  after  judgment,  and  only  then  when 
civil  rights  are  involved,  and  the  ecclesiastical  court  had  no  power  to  act  at  all. 

Tlic  objection  that  the  proceedings  are  void  because  the  commission  shows  that  the 
bishop  is  proceeding  upon  "  credable  information "  and  not  "public  rumor"  or  other 
ground  is  answered ^irsi,  by  the  fact  that  the  ground  alleged  is  equivalent  to. "public 
rumor  "  ;  second,  that  the  1st  section  of  canon  20  is  not  restrictive,  and  was  not  intended 
to  be.  The  canon  refers  to  the  "mode"  of  t Hal  not  of  proceeding  anterior  thereto. 
In  the  specified  cases  the  bishop  must  proceed ;  otherwise  he  may  or  may  not,  as  he 
chooses.    The  bishop  has  power  inlierent  in  his  office  to  exercise  spiritual  discipline. 

His  power  comes  from  the  Lord  of  Hosts  ;  his  commission  as  a  successor  of  the  apos- 
tles comes  from  the  Blessed  Saviour  who  promised  to  be  with  them  "  even  unto  the  end 
of  the  world,"  and  declared  "whatsoever  thou  shalt  bind  on  earth,  shall  be  bound  in 
heaven  ;  and  whatsoever  thou  shalt  loose  on  earth,  shall  be  loosed  in  heaven ;  "  whose- 
soever sins  ye  remit  they  are  remitted  unto  them ;  and  whosesoever  sins  ye  retain,  they 
are  retained."  XVI  Matthew  19  ;  XX  Jolni  23.  These  quotations  refer  undoubtedly 
to  discipline. 

The  learned  counsel  here  referred  to  Van  Espcn's  work  on  the  canons,  Venetian 
edition  of  1754.  Part  III,  Tit.  IV,  p.  42,  and  read  from  the  original,  the  definition  of  a 
bishop's  powers,  contending  that  the  bishops  still  possessed  them.  Also  Hanks  on  Const, 
and  Canons  59,  60,  and  the  authority  cited  in  the  answer  of  the  bishop  in  the  Hager 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.        41 

case;  also  Hale's  Precedents  in  Grim.  Cases  57,58.  "The  Episcopate"  by  H.D.  Evans 
pp.  11,  154,  et  scq.,  1  Blkst.,  382.  Const  and  Canons  Can.  1,  Sec.  1,  Tit.  II ;  Cauon  13, 
Tit.  1,  Sec.  XI.    Hoffman  305  ;    Hanks  339. 

It  thus  appears  the  bishop  has  authority  outside  of  the  canon,  and  if  so,  these  pro- 
ceedings must  be  upheld.  The  objections  to  the  presentment  amount  to  nothing^ ;  upon 
criminal  indictments,  any  time  may  be  proved  within  the  statute  of  limitations. 

Same  averments  in  precedents  in  Hoffman's  notes  on  the  Penal  Law  of  the  church, 
pp.  93,  96.  As  to  jurisdiction,  respondent  had  it  by  ])lea  of  not  guilty  duly  entered  ; 
and  by  exceptions  which  were  filed  to  the  presentment,  Hale's  Precedents  57  ;  Brineler 
V.  Dawson,  4  Scam.  .541,  2S  III,  70 ;  33  III,  518 ;    35  III.,  .53 ;  37  Itt.,  306. 

Finally  civil  courts,  will  not  interfere  with  courts  spiritual  in  anj-  manner  ■whatever. 
In  cases  where  civil  or  property  rights  are  involved  they  may  inquire  whether  there 
was  power  to  act  at  all,  but  even  then  will  be  governed  by  the  construction  by  ecclesi- 
astical courts  of  their  own  law.  Hoffman,  p.  473 ;  Oer.  R.  Ch.  v.  Scibert  3  Barr.  291 ; 
Harmon  v.  Drcper,  1  Speer^s  Eq.,  120  ;  Wnllnce  v.  Walmoright,  16  Barb.,  486 ;  RobcrUon 
V.  Bullions,  9  Barb.,  64/    Shannon  v.  First,  3  B.  Man.,  2.58. 

\  Blkst.,  Z  Id,  Z1V>;  I  Story's  Eq.,  Jur.  §  .596;  21(1.,%  898/  1  Waterman' s  Eden  Yl%. 
2  Burr.  813 ;  3  Blkst.  112  /  3  T.  R.,  4 ;  Eden  on  Inj..  3. 

George  W.  Thompson,  Esq.,  opened  the  argument  for  the  complainant. 

He  nlhuled  to  the  reluctance  with  which  tliey  had  yielded  to  the  necessity  of  coming 
into  this  Court  because  they  might  be  considered  by  some  as  applying  to  the  civil  conrts 
to  interfL're  with  its  strong  arm  with  the  independence  of  the  Church.  He  insisted  that 
it  was  no  interference  with  the  legitimate  independence  of  the  Church,  that  they  had 
exhausted  every  effort  in  their  power  to  secure  a  fair  mode  of  trial  under  the  Canons  and 
law  of  the  Church.  We  fully  recognize  the  rule  that  "  the  Church  should  settle  its  dis- 
putes according  to  its  own  rules,  "  but  Avhen  in  bold  violation  of  the  law  and  Canons  of 
the  Church,  forming  alone  the  federal  relation  into  which  he  entered,  a  presbyter  is  about 
to  suffer  pecuniary,  and  civil  loss,  with  no  remedy  or  other  protection  against  the 
usurpation,  the  civil  power  must  interpose  to  prevent  the  wrong. 

We  insist  that  it  is  no  interference  in  sacris,  but  with  an  arbitrary  and  capricious  at- 
tempt in  the  name  of  the  Church  and  contrary  to  its  laws,  to  entail  degradation  and 
civil  injury  upon  our  client. 

We  have  come  into  this  Court  to  protect  the  Rector  of  Christ  Church  against  unlaw- 
fnl  proceedings,  seeking  to  silence  his  lips,  and  to  strike  from  his  hands  the  weapons  of 
his  christian  warfare. 

We  feel  it  our  duty  to  protect  him.  We  would  save  him  to  the  hundreds  of  souls 
whom  he  has  gathered  into  the  fold  of  Christ,  as  well  as  to  hosts  of  others  seeking  his 
hand  to  guide  them  thither.  We  would  save  him  to  those  seven  hundred  children  whose 
little  feet  come  pattering  to  his  Sunday  Schools.  We  would  save  him  to  the  Church  at 
large,  and  if  he  is  to  be  silenced  and  crushed,  we  are  determined  that  it  shall  be  done 
according  to  the  law  of  the  church,  which  is  ample  for  all  correction  and  discipline. 

Mr.  Thompson  then  reviewed  the  proceedings  before  the  so-called  Ecclesiastical  Court, 
in  detail,  together  Avith  the  efforts  to  secure  an  acceptable  court,  and  argued, 

1.  That  the  respondents  Avere  proceeding  contrary  to  the  provisions  of  the  canon 
which  as  constituting  the  stipulation  between  the  parties  must  be  oljserved  by  each  : 

2.  That  it  was  monstrous  to  deny  the  right  to  an  impartial  tribunal.  That  the  com- 
plainants counsel  had  made  every  effort  to  obtain  such  informally  and  personally,  and 
the  right  of  challenge  ought  not  to  be,  and  could  not  be  denied.  That  the  law  of  the 
land  prevailed  and  must  be  observed  if  the  canon  did  not  otherwise  provide. 

3.  That  the  respondents  had  no  jurisdiction  whatever  to  try  the  complainant.  The 
1st  section  of  Diocesan  Canon  XX  was  clearly  restrictive  and  it  was  not  pretended  that 
the  bishop  was  proceeding  upon  cither  of  the  three  indicated  sources  of  information. 


42  TRIAL    OF    REV.    CHARLES    EDWARD    CHENEY. 

He  read  from  the  opinion  of  Chief  Justice  Wilson  in  tlie  Hager  case  as  decisive  upon 
the  question. 

As  to  the  publication  of  the  bishop's  answer  and  Judge  Arrington's  argument  that 
was  no  legislative  construction  to  the  contrary  for  the  opinion  of  Judge  Wilson  was  also 
published. 

That  it  was  proposterous  to  urge  in  this  land  at  this  day,  the  doctrine  that  the  Bishop 
had  inherent  power  to  degrade  his  clergy,  outside  of  the  Canons  of  the  Church.  It  was 
not  possible  that  through  mere  caprice,  and  of  his  own  motion,  the  Bishop  can  call  up 
a  presbyter  out  of  the  harvest  held  of  his  labor  and  depose  him  at  will,  that  the  law  and 
Canons  of  the  Church  had  limited,  and  cut  off  all  such  power,  and  that  the  Hager  case 
so  settled  it,  and  was  conclusive  of  the  case  at  bar. 

4.  That  the  presentment  was  fatally  defective.  Time  and  circumstances  must  be 
alleged.  It  Avas  impossible  to  make  a  defence  covering  a  period  of  two  years  and  two 
hundred  or  more  baptisms. 

He  read  from  Hoffman  on  the  Law  of  the  Church,  in  support  of  this  point,  and  argued 
further  that  the  presentment  did  not  charge  any  offence  under  the  constitution  or 
canons  of  the  church,  nor  any  against  the  engagement  to  conform  to  its  doctrines  and 
worship.    We  could  not  traverse  the  charge,  nor  confess  it. 

5.  That  the  defendants  were  hurriedly  proceeding  to  degrade  complainant,  and  thereby 
irreparable  injury  would  come  upon  him.  Civil  courts  always  interfered  in  such  cases, 
for  the  complainant  has  no  other  remedy  to  prevent  the  wrong. 

The  learned  counsel  read  in  support  of  this  position  the  leading  case  of  Smith  v.  Nel- 
son, 18  "Vermont,  and  concluded  his  effort  with  an  appeal  to  the  court  on  behalf  of 
his  client  with  whom  he  had  been  personally  asssociated  in  church  labors  for  many 
years. 

Hon.  Melville  W.  Fuller  —  It  is  now  4  o'clock.  Did  the  court  intend  sitting  late 
this  afternoon  ? 

The  Court  —  Yes  sir.    That  was  my  intention. 

Mr.  Fuller  —  I  shall  be  compelled  to  ask  the  indulgence  of  the  court.  On  account 
of  sickness  in  my  family,  I  would  like  to  get  away  at  5  o'clock. 

The  Court  —  The  court  will  adjourn  at  that  hour,  of  course,  under  such  circumstances. 

Mr.  Fuller  —  Then  commenced  the  closing  argument  against  the  motion  to  dissolve. 
He  deprecated  the  assertion  of  liis  friend,  Mr.  Judd,  that  he  appeared  for  a  majority  of 
christian  people.  It  was  to  be  remembered  that  history  was  full  of  instances  of  oppres- 
sion in  the  name  of  Christ.  He  (Mr.  F.),  believed  himself  to  appear  for  Christian  peo- 
ple also,  and  he  represented  more  than  them ;  he  represented  that  harvest  field  in 
which  the  laborers  were  so  few  and  an  earnest  laborer  in  that  harvest,  and  the  question 
was  whether  the  sickle  was  to  be  stricken  from  the  hand  of  his  client  and  he  prevented 
at  the  last  day  from  coming,  bringing  his  sheaves  with  him.    (Applause.) 

The  Court  —  I  shall  be  under  the  necessity  of  clearing  the  court  of  all  spectators 
unless  anything  like  applause  be  avoided.    It  cannot  be  permitted. 

Mr.  Fuller — Then  proceeded  to  argue  : 

1.  That  ecclesiastical  tribunals  are  limited  in  authority  to  the  law  under  which  they 
act,  and  when  rights  of  property  or  even  of  public  concern  are  invaded  by  illegal  acts, 
the  party  is  entitled  to  relief  in  civil  courts,  as  in  ordinary  cases  of  injury  resulting 
from  the  violation  of  a  contract  or  the  fundamental  law  of  a  voluntary  association,  and 
cited:  Watson  vs.  Avery,  '2, Bush.  336;  Smith  vs.  Nelson,  18  Verm.  511 ;  Laio  Rep.  Dec,  No. 
1855/  Brosius  vs.  Reuter,  1  H.  and  J.,  551,'  Rankle  vs.  Winemuller,  4  liar,  and  McH., 
429/  Green  vs.  African  Meth.,  Epis.  Ch.,  1  S.  and  R.  254/  Comm.  vs.  Green,  4  Wharton 
531/  State  vs.  Crowell,  i  JIaJst.,  391/  People  vs.  Steel,  2  Barb.  897/  Bm-r  vs.  Sandwich, 
9  Mass.  287/  Thompson  vs.  Rehoboth,  Cong.,  Soc,  5  Pick,  469/  Thompson  vs.  Lame,  7 
Pit-it.,  169  /  STieldon  vs.  Caston,  24  pick.  281.'  HoIUs  St.  Church  vs.  Pierj^ont,  7  Met.,  495  / 
St.  Luke's  Ch.  vs.  Slack,  1  Cush.  226/     Vestry,  &c.,  vs.  Matthetos,  4  I>essaitsnreol7  ;  also  the 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.         43 

authorities  cited  Contra ;  Dreper^s  case  1  Spcer's  Eq. ;   SeBerCs  case,  3  Barr  ;     Walker 
vs.   Wainivrif/ht,  16  Barb. 

2.  The  pursuit  of  an  avocation  is  property  in  itself,  and  the  office  of  a  clergyman,  a 
matter  of  public  concern,  as  well  as  one  of  emolument,  and  on  either  of  these  grounds, 
courts  will  interfere  to  prevent  or  redress  illegal  deprivation  thereof. 

In  re  Dorsey,  7  Porter  3S1 ;  Amer.  Laio  Hep.,  Dec,  1855 ;  Rex  vs.  Barker,  3  Burr, 
1265;  St.  Luke^s  Ch.  vs.  Slack,  7  Cush.,  226.  At  this  point  the  court  adjourned  to 
Wednesday  morning  at  9  o'clock. 

Wednesday,  July  27,  1869. 

Mr.  Fuller  resumed  his  argument  : 

3.  The  iuterTerence  of  the  civil  court  will  take  the  shape  of  injunction  when  the 
case  made  shows  that  the  complainant  is  threatened  with  illegal  action,  the  result  of 
which  will  be  irreparable  injury,  or  injury  for  the  redress  of  which  tliu  remedy  at  law  is 
inadequate. 

To  be  adequate  the  remedy  must  be  equivalent  to  the  complete  restoration  of  the 
statiis  qito. 

If  the  damage  cannot  be  measured,  the  injury  is  irreparable ;  and  so  if  the  subject 
matter  will  be  destroyed  even  though  the  damages  can  be  ascertained. 

4.  The  injury  threatened  here  is  deposition.  Such  a  sentence  works  irreparable  in- 
jury, even  though  illegal. 

Tit.  II,  canon  10,  sees.  1  and  2 ;  canon  3,  sec.  2.  He  can  not  only  not  officiate  in  this 
diocese,  but  not  in  any  other.  Nor  can  the  bishop  of  any  other  diocese  go  behind  the 
sentence  though  it  may  be  null  and  void.  His  parish  must  leave  him.  His  profession  is 
at  an  end. 

'  The  counsel  then  recapitulated  the  allegations  of  the  bill,  the  answer  and  the  Bishop's 
affidavit,  and  argued  that  it  was  determined  to  inflict  deposition,  and  there  was  no 
appeal. 

5.  English  Ecclesiastical  cases  are  not  altogether  in  point,  because  there  such  courts 
are  created  and  regulated  by  law,  and  the  right  of  appeal  given. 

Gorham\t  case  in  the  Court  of  Arches  and  before  the  Privj'  Council  was  cited. 

The  writ  of  prohibition  furnishes  an  analogy,  and  where  that  would  issue  in  Eng- 
land injunction  should  here. 

Oover  vs.  Oapper,  5  East.  364  ;  Thoma.'s  vs.  Mead,  36  ]Hm.  248  ;  1  P.  Williams  272  ;  Fitz 
HerberVs  Natura  Brevium,    Tit.  Prohibition  ;  Appo^s  case,  20  ^V.  York  542. 

Injunction  is  frequently  granted  where  public  functionaries  exceed  the  limits  of  the 
law.  Frevier  vs.  LewU,  4  M.  and  C.  258  ;  and  has  issued  against  church  trustees  to  pro- 
hibit the  election  of  a  minister  not  duly  licensed  by  the  church  ;  MiUi<jaii  vs.  MitchcU,  1 
M.  and  K.  446. 

Mr.  Fuller  then  proceeded  to  the  examination  of  the  proceedings  of  the  ecclesiasti- 
cal tribunal,  insisting  that  the  respondents  had  no  jurisdiction  over  the  subject  matter 
or  to  proceed  to  try  the  complainant  at  all. 

First.  Art.  6,  general  constitution,  provides  that  the  mode  of  trying  a  presbyter  shall 
be  prescribed  by  the  respective  diocesan  conventions. 

Sec.  1,  canon  XX,  Diocese  of  Illinois,  prescribed  that  proceedings  could  be  int^tituted 
by  the  Bishop  on  one  of  three  defined  grounds.  Sec.  10  declares  that  nn  presbyter  can 
be  subjected  to  suspension  or  censure  unless  "  adjudged  thereto  "  as  provided  in  the 
canon. 

As  neither  of  these  grounds  existed  in  this  case,  the  respondents  were  without  juris- 
diction.     WUson,  C.  J.  Mar/er^s  case. 

In  courts  of  special  creation  and  limited  jurisdiction  the  facts  necessary  to  give  juris- 
diction must  be  alleged. 

Broome's  Maxims,  581  .•  3  GreenJ..  Ev.  .504;  Be  Hart  on  Militarif  Lav,  111 ;  3  Att.  Gen. 
Opinions  pp.  398,  544,  4  Scam.  88;  Benedi^Vs  admiralty,  402;  6  Foster  652.    The  citation, 


44  TRIAL   OF    REY.    CHARLES   EDWARD    CHENEY. 

commission  and  presentment  here  not  only  did  not  show  jurisdiction,  but  atfirmatively 
established  the  contrary.  That  this  is  a  court  of  "special  creation  and  limited  jurisdic- 
tion," will  not  be  denied,  and  it  is  so  asserted  by  Bishop  Whitehouse  in  his  letter  to 
Hager. 

Second.    The  complainant  was  entitled  to  be  tried  by  an  impartial  tribunal. 

Want  of  impartiality  vitiates  :  Smitli  vs.  Nelson,  18  Ver?nont,  511 ;  Thompson  vs.  Reho- 
both,  C.  Soc,  7  Pick.,  160.  In  obedience  to  the  principles  of  right  and  justice,  this  is 
always  so  held. 

The  right  of  cliallenge  was  denied  in  this  case.  By  the  Bishop,  first  (see  correspond- 
ence); by  the  assessors  afterwards. 

It  should  have  been  granted.  The  right  is  universal.  At  common  law,  3  Blkst.,  354, 
4  Blkst ,  353.  By  the  civil  and  canon  law  :  Concet  on  Ecc.  Courts,  p,  69;  OughtoTi's  Ordo 
Judiciorum,  p.  [2,  V6,  Clarke's  Praxis,  Tit.  \0\.  By  military  law ;  De  Hart  on  31.  Law,  p. 
135,  et  seq.,  Opinions  of  Att.  Gen.,  p. S97.  Church  law:  TrapnelVs  case.  It  was  not 
denied  in  the  Senate  sitting  as  a  court  of  impeachment,  though  that  trial  is  not  analo- 
gous.   (3  voh.  Imp.  Tried  Pres.  Johnson,  jyp.  361,  374.) 

Counsel  then  discussed  canon  XX.,  and  insisted  its  provisions  were  framed  in  view  of 
the  exercise  of  this  right,  and  granted  peremptory  challenge  in  terms. 

Third.  The  presentment  was  void,  ipso  jure,  for  want  of  suflScient  amount  of  time 
and  circumstances.  The  allegations  were  that  the  alleged  offence  was  committed 
within  six  and  twelve  months  and  two  years.    No  circumstances  were  set  forth. 

It  was  fatally  defective  according  to  the  criminal  law  :  1  Chittt/s  Cr.  Law,  217,  et  seq. 
Civil  and  canon  law  :  Concet,  p.  79,  Oughton,  p-  163,  Waddilove''s  Dig.,  80.  Military  law, 
De  Hart,  p.  Ill,  3  Orecnl.,  506;  Episcopal  church  law,  Hoffman,  p.  401 ;  Id.  Ecc.  Law, 
477.  It  was  impossible  for  complainant  to  prepare  to  prove  his  innocence  under  so 
indefinite  a  presentment.  He  could  not  tell  what  witnesses  to  summon.  The  judg- 
ment would  be  no  bar. 

Fourth.  No  offense  was  set  forth.  The  claim  that  the  canons  were  amended  in  1868 
so  as  to  make  these  charges  constitute  offences  was  uusustained  by  legal  evidence  of 
the  amendment.  The  journal  of  1863  had  never  been  published,  and  no  amendment 
could  go  into  effect  until  then.  If  in  effect  at  all  it  was  within  six  months,  und  the 
presentment  ez  post  facto  and  void. 

Fifth.  No  notice  of  time  and  place  of  trial  had  been  given.  Counsel  inferred  from 
the  canon  that  the  citation  was  intended  to  be  solely  to  "  appear  and  answer,"  and  after 
the  court  was  selected  and  the  preliminary  questions  adjusted,  then  time  of  trial  was  to 
be  fixed.    He  contended  this  was  the  practice  under  the  common  and  civil  law. 

Mr.  Fuller  insisted  that  if  on  the  whole  case  the  complainant  showed  equities,  he 
was  entitled  to  amend.  On  a  motion  like  this  the  chancellor  would  balance  the  incon- 
veniences, and  if  the  consequences  to  the  complt.  of  a  dissolution  were  more  serious 
than  those  of  the  continuance  of  the  injunction  to  the  defts.,  the  injunction  would  be 
retained  until  the  hearing. 

The  position  on  the  other  side  of  "  waiver"  was  untenable.  Consent  could  not  give 
jurisdiction.  There  was  no  such  thing  as  waiving  an  objection  to  jurisdiction  over  the 
subject  matter  which  was  the  jurisdictional  defect  in  this  case. 

As  to  the  claim  that  complainant  did  not  assert  his  innocence,  and  so  had  no  stand- 
ing in  a  court  of  Equity  ;  it  was  preposterous.  The  presumption  of  innocence  pro- 
tected him,  and  besides  he  averred  it  in  the  bill  that  he  was  guiltless.  And  the  pro- 
ceedings upon  their  face  showed  that  he  had  committed  no  offense.  The  doctrines  of 
the  church  demanded  the  omission  and  usage  justified  it.  The  Episcopal  church  has 
not  reached  Rome  yet,  and  until  it  does  these  charges  cannot  be  sustained.  And  it  was 
ridiculous  to  argue  that  the  bishop  prosecuted  him  for  this  omission.  The  protest  was 
the  key  to  this  proceeding.  And  he  was  in  any  event  entitled  to  a  foir  trial ;  to  be 
tried  by  his  peers  which  partial  judges  could  not  claim  to  be. 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.        45 

It  was  an  outrage  to  say  tliat  a  clergyman  could  be  dragged  up  before  five  men,  utter- 
ly void  of  authority  to  try  him  and  subjected  to  pains  and  penalties  without  sight  of 
appeal  or  other  remedy,  and  when  he  applies  for  relief,  it  is  to  be  denied  unless  he  con- 
fess guilt  or  assert  innocence,  which  is  the  precise  question  he  wishes  determined,  and 
has  a  right  to  have  determined  in  courts  of  his  church," as  respondent's  counsel  admit. 

He  commended  this  case  of  his  client  to  the  careful  consideration  of  the  coiu-t.  He 
had  set  forth  his  innocence.  He  had  shown  on  the  bill  that  he  had  done  nothing  worthy 
of  stripes.  God  would  send  him  such  deliverance  as  he  might  choose  to  voiiclLsafe.  If 
his  course  found  favor  in  His  eyes,  it  mattered  little  what  man  might  do  to  liiui. 

Hon.  William  C.  Gouby,  addressed  the  Court  on  behalf  of  the  motion. 

His  clients  had  no  interest,  pecuniary  or  personal,  in  the  premises.  They  only  desired 
to  discharge  their  duty.  The  liev.  Complainant  asserted  that  all  he  desired  was  an  im- 
partial trial.  He  had  taken  no  steps  to  secure  it,  except  his  counsel  had  addressed  a 
getter  to  the  Bishop,  knowing  what  his  answer  must  be,  in  pursuance  of  a  concocted 
plan  to  put  the  Bishop  seemingly  in  the  wrong.  Why  did  not  the  Complainant  attend 
the  meeting  of  the  Standing  Committee  to  select  five  presbyters  to  try  him,  or  write  to 
the  designated  eight,  if  he  wished  to  know  their  opinion  ?  This  waiting  until  July  21st, 
was  all  part  of  a  game. 

The  first  inquiry  of  a  Court  of  Equity  is,  does  the  Complainant  come  with  clean 
hands  ? 

The  Complainant  nowhere  denies  that  he  has  omitted  the  words  in  question.  He  no- 
where admits  it.  He  nowhere  admits  his  innocence.  If  the  parties  are  in  pari  delicto 
even,  the  bill  will  be  dismissed. 

Other  defects  exist  in  this  Bill.    It  is  conceded  that  Christ  Church  is  a  corporation. 

The  article  in  the  Law  Reporter  treats  of  mandamus,  which  will  lie  to  restore  an  offi- 
cer of  a  corporation  illegally  displaced,  but  there  is  no  allegation  of  corporate  existence 
here. 

As  to  Complainant's  salary,  the  contract  thereto,  is  not  set  forth.  Even  if  it  were 
and  the  averment  of  the  acquisition  of  education  for  the  Ministry  be  considered,  still, 
how  is  he  threatened?  He  may  be  acquitted.  What  is  there  to  show  that  he  will  neces- 
sarily be  deposed  ?  True,  threats  on  the  part  of  the  Bishop  are  alleged,  but  it  is  not 
claimed  the  Respondents  were  parties  thereto,  and  the  Bishop  himself  denies  them. 
Respondents  deny  also  that  they  are  under  the  Bishop's  influence.  The  salary  would 
not  be  endangered  even  if  deposition  were  inflicted,  if  the  proceedings  be  void.  And  the 
application  is  in  any  aspect,  premature  until  judgment. 

The  danger  to  receipt  of  a  salary  does  not,  however,  justify  this  Court's  interposition. 
Judge  Wilson  so  holds  in  the  opinion  so  frequently  quoted. 

It  is  a  part  of  a  clergyman's  engagement,  that  his  salary  shall  depend  on  his  conform- 
ty  to  the  creed  and  rules  of  the  Church,  and  by  implication  that  these  rules  shall  be  ex- 
pounded by  the  Church  authority.  In  theoiy,  at  least,  the  minister's  reward  is  in  the 
Hereafter.  The  Apostles  took  neither  scrip,  nor  purse.  This  bill  is  framed  in  a  far  dif- 
ferent aspect.  The  salary  must  depend,  however,  on  the  exposition  of  Church  tribunals 
of  Church  rules.  Shall  infidel  Judges  become  the  expounders  of  Christian  laws? 
No  Civil  Court  ever  did,  or  ought  to  interfere  in  matters  of  Church  discipline. 

This  bill  avers  no  fraud,  no  conspiracy.  It  shows  no  threatened  injury.  The  answer 
should  be  accepted  as  true,  and  avers  that  the  Respondents  were  acthig  in  good  faith. 

The  elements  of  irreparable  injury  are  not  set  up.  Injury  to  reputation  can  not  be  so 
redressed. 


46        TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

Is  there  pecuniary  damage?  The  Complaiuant,  even  if  deposed,  can  still  preach  the 
Gospel. 

The  wi-ongs  complained  of  are  merely  that  the  Bishop  did  not  say,  as  he  might,  that 
h9  was  proceeding  on  "  public  rumor  ;"  that  the  citation  did  not  say  its  return  day  was 
the  day  of  trial ;  that  the  presentment  did  not  allege  a  day  under  a  scilicet ;  that  the 
Complainant  was  not  permitted  to  investiicate  the  opinions  of  the  assessors.  The  idea 
that  the  services  of  a  Clergyman  are  of  such  a  nature  that  deposition  is  irreparable  in- 
jury, is  not  sustainable.  Only  the  execution  of  the  sentence  can  be  enjoined  in  any 
event. 
Law  affords  a  remedy  for  aught  that  appears  on  the  face  of  this  bill. 
Prohibition  only  lay  where  one  Court  interfered  with  the  jurisdiction  of  another.  It 
has  not  application  here. 

^  case  might  exist  to  enjoin  the  presenters,  or  the  Bishop,  but  never  the  members  of 
the  Court,  as  here. 

As  to  the  proceedings  of  the  ecclesiastical  Court.  Did  the  Respondents  have  jurisdic- 
tion of  the  subject  matter,  and  of  the  person  ? 

The  Commis>ion  forms  no  part  of  the  proceedings.  The  presentment  being  found, 
the  Bishop  shall  cite  the  accused,  who  shall  select  assessors,  or  the  Standing  Committee 
shall  do  so  for  him,  and  so  the  Court  is  constituted.  The  Court  is  one  of  general  juris- 
diction, but  of  special  creation.  The  only  facts  necessary  to  show  its  jurisdiction  are 
the  presentment  and  the  selection.  The  complaint  is  of  an  irregular  exercise  of  power 
by  the  Bishop,  not  a  want  of  it.    The  Commission  was,  however,  sufficient. 

All  disciplinary  power  is  in  the  Bishop,  and  Canon  XX.  is  no  restriction.  He  must 
proceed  as  there  named.  He  may  proceed  in  other  cases.  Judge  Wilson's  decision  as 
to  this  was  but  a  dictum. 

If  the  presentment  were  objectionable,  it  was  for  the  Church  Court  to  determine  that 
question,  and  its  decision  is  conclusive.  But  the  presentment  is  sufficient,  as  the  place 
is  named  ;  the  time  is  immaterial,  and  the  accused  can  learn  the  particular  instances 
from  his  Parish  Register. 

The  exceptions  to  the  presentment  were  equivalent  to  a  demurrer,  and  constituted  a 
waiver. 

As  to  the  right  of  challenge,  it  did  not  exist.  The  assessors  were  judges,  not  jurors. 
There  was  no  mode  by  which  the  question  could  be  determined.  The  Canon  is  the  sole 
law  and  permits  no  such  thing. 

The  construction  of  the  Canon  by  the  Bishop,  in  1863,  was  approved  by  the  Conven- 
tion of  that  year,  and  is  conclusive. 

Civil  Courts  will  not  interfere  with  matters  of  discipline,  whatever  the  consequences. 
If,   after  judgment,  any  civil  right  were  affected,  the  Civil  Court  might  investigate, 
to  see  whether  there  had  been  power  to  proceed. 
This  Court  might  as  well  interfere  with  the  County  Court. 

The  Coubt.  The  point  is,  is  there  a  right  of  appeal  ?  If  there  were  a  right  of  appeal 
here,  the  case  might  stand  differently. 

Mr.  GouDY.  There  must  be  a  final  decision  in  every  cause.  A  writ  of  certiorari  lies 
to  proceedings  of  an  inferior  Court ;  injunctions  never.  No  Court  will  interfere  with 
proceedings  of  a  Board  of  Trade,  or  Base  Ball  Club,  to  see  whether  questions  have  been 
properly  decided.  Religious  freedom  cannot  be  interfered  with  under  our  Constitution. 
It  cannot  be  enjoyed,  unless  religious  organizations  are  protected,  and  not  interfered 
with. 

Mr.  GouDT  trusted  the  Court  would  be  influenced  by  an  enlightened  Christian  reason, 
and  guided  by  the  Father  of  us  all,  to  promote  the  cause  of  our  Saviour,  repress  schism, 
and  protect  religious  freedom. 

The  Court  took  the  case  under  advisement. 


TRIAL   OF    REV.    CHARLES   EDWARD   CHENEY.  47 

Tuesday,  Aug.  3d. 

The  Court  announced  that  the  motion  to  dissolve  the  injunction  was  overruled,  and 
gave  briefly  th"  ground;  of  the  decision,  stating  that  tlie  views  of  tlie  Court  would  be 
subsequently  given  in  writing. 

The  opiuiou  of  his  Honor,  Judge  Jameson,  was  afterwards  filed  in  the  cause,  and  is  a8 
follows : 


JUDGE  JAMESON'S  DECISION. 


^  This  is  a  motion  to  dissolve  an  injunction,  based  upon  the  bill, 
answers  and  the  affidavit  of  the  Rt.  Rev.  H.  J.  Whitehouse.  The 
injunction  was  allowed  without  notice  to  the  respondents,  upon  the 
suggestion  of  extreme  urgency,  and  as  the  effect  was  to  suspend  in- 
definitely the  proceedings  of  the  respondents  claiming  to  act  as  an 
ecclesiastical  court,  I  have  felt  it  due  to  them  to  grant  an  early 
hearing  of  this  motion  and  to  decide  it  as  soon  as  possible,  consist- 
ently with  a  thorough  examination  of  the  very  important  points  of 
law  involved. 

The  questions  raised  in  the  case  are  mainly  questions  of  jurisdic- 
tion; first,  of  this  court,  to  interfere  with  the  proceedings  of  a  court 
spiritual ;  and,  secondly,  of  the  court  whose  proceedings  have  been 
enjoined,  to  sit  as  such,  or  to  take  cognizance  of  the  offense  charged 
to  have  been  committed  by  the  complainant.  Before  proceeding  to 
consider  these  questions,  I  think  it  proper,  in  view  of  the  prevalent 
misconceptions  in  regard  to  the  conditions  and  limits  of  the  right  of 
the  civil  courts  to  intervene  in  ecclesiastical  cases,  to  restate  with 
precision  what  claims  are  advanced  by  those  courts,  and  what  are 
not ;  and,  to  make  it  certain,  that  I  do  not  exaggerate  their  power, 
or  assert  it  in  cases  in  which  it  does  not  exist,  I  shall  confine  myself 
to  citations  from  the  opinions  of  eminent  American  authorities. 

In  the  case  of  Smith  vs.  Nelson,  18  Vt.,  549,  the  late  Chief  Jus- 
tice Williams,  after  describing  the  ecclesiastical  judicatories  of 
England,  forming  a  co-ordinated  system  with  that  of  the  civil  courts, 
ending  in,  as  they  emanated  from,  the  King,  the  head  of  both 
Church  and  State,  says  of  tribunals  bearing  the  name  of  ecclesiasti- 
cal courts  in  our  churches  in  America  : — 

"  In    this    State,    the    case  is    wholly    different,    we    have    no 
4 


50  JUDGE  Jameson's  decision. 

religious  establishment,  no  ecclesiastical  law,  or  courts,  es- 
tablished by  any  authority.  All  their  laws  are  wanting  in 
this  essential  requisite,  to  give  them  any  authority,  that  they 
are  not  '"prescribed  by  the  Supreme  Power  in  a  State.'  And 
though  they  may  form  constitutions,  enact  canons,  laws  or  ordin- 
ances, establish  courts,  or  make  any  decisions,  decrees,  or  judg- 
ments, yet  they  can  have  only  a  voluntary  obedience,  cannot  affect 
any  civil  rights,  immunities,  or  contracts,  or  alter  or  dissolve  any 
relations  or  obligations,  arising  from  contracts.  When  their  pro- 
iCeedings  are  to  be  examined  by  ordinary  tribunals  of  justice,  their 
.power  is  a  phantom,  and  they  can  receive  no  other  consideration, 
than  the  regulations  of  any  other  voluntary  associations,  formed  for 
trifling,  or  grave  and  important  purposes.  Obedience  to  the  requisi- 
tions of  any  ecclesiastical  societies  may  be  required,  under  penalty 
of  spiritual  censures;  but  this  is  the  only  penalty  incurred  by  diso- 
bedience; and-whether  one  submits  to,  or  defies,  the  proceedings  of 
:any  ecclesiastical  court,  or  any  censures  passed  by  them,  depends 
on  his  conviction  of  the  regularity,  or  irregularity,  of  their  proceed- 
ings." 

The  learned  judge  then  proceeds  to  show  by  cases  from  the 
English  and  Scotch  Reports,  that  the  proceedings  of  an  ecclesiasti- 
cal court  in  England  arid  Scotland  may  be  inquired  into  collaterally, 
and  that  when  they  proceed  illegally,  even  those  who  pronounce 
their  decrees  are  not  exempt  from  responding  for  damages  which 
•  an  individual  may  sustain  in  consequence  of  their  illegal  acts.  He 
"then  proceeds : — 

"  And,  surely,  if  the  proceedings  of  an  ecclesiastical  court, 
.known  to  the  law,  may  be  a  subject  of  inquiry  in  the  courts 
of  Great  Britain,  and  Scotland,  and  the  parties  injured  may 
have  redress  in  the  civil  courts  by  action,  the  proceedings  of  any 
■self-constituted  ecclesiastical  tribunal,  not  recognized  as  a  part  of 
our  jurisprudence,  may  be  examined,  disregarded,  and  declared  void, 
whenever  the  subject  comes  before  our  courts  of  law,  whether  direct- 
ly or  collaterally." 

To  he  same  effect,  may  be  cited  an  article  in  the  Monthly  Law 
Reporter,  for  December,  1855,  attributed  to  the  Hon.  Richard  H. 
Dana,  of  Boston,  and  containing  a  most  able  review  of  the  law  on 
this  and  collateral  questions.  The  author  thus  speaks  of  the  point 
now  under  examination  : — 

"  An   objection   may  Tse   raised,  that   the    civil    courts    will   not 


JUDGE   JAiMESOn's    DECISION.  51 

interfere  in  ecclesiastical  cases.  The  answer  is,  that  if  the 
spiritual  office  is  one  that  draws  after  it  temporal  ei.''^Iument, 
or  that  concerns  the  public,  the  civil  courts  must  vindicate  the 
public  or  private  right,  although  in  doing  so  they  may  incidentally 
be  obliged  to  decide  on  some  questions  of  ecclesiatical  law." 

After  adverting  to  the  difference  between  English  ecclesiastical  law, 

and  our  own,  and  to  the  confusion  that  has  arisen  in  these  cases  from 

a  want  of  attention  to  it,  he  continues  : — 

"  But  in  this  country  there  is  no  legal  tribunal  for  ecclesiastical 
law,  —  what  we  call  ecclesiastical  courts,  in  the  different  denomi- 
nations, being  merely  voluntary  bodies  acting  by  agreement  of 
parties.  Hence,  the  question  of  collision  between  legal  tribunals 
does  not  arise  in  America.  If  there  are  rights,  public  or  private, 
to  be  enforced,  they  can  be  enforced  only  in  the  civil  courts."  — 
Month.  Law  Rep.,  for  Dec,  1855,  p.  427. 

So,  the  late  learned  Chief  Justice  of  this  Court,  Judge  Wilson,  in 
deciding  a  motion  to  dissolve  an  injunction  in  the  case  of  the  Rev. 
Mr.  Hagar,  arising  in  this  Diocese,  upon  a  state  of  facts  similar  to 
those  in  this  case,  alluding  to  the  jurisdiction  of  the  civil  courts  in 
such  cases,  said  : — 

"  It  (a  church)  is  regarded  only  as  a  voluntary  association,  and 
its  constitution,  laws  and  canons,  as  stipulations  between  the  parties 
defining  their  duties  and  obligations.  The  civil  rights  of  all  the 
members  are  still  protected  and  enforced  by  the  civil  tribunals,  ex- 
cept so  far  as  they  have  been  voluntarily  submitted  to  the  adjudica- 
tion of  the  association  of  which  they  are  members.  For  the  protec- 
tion of  these  rights,  the  civil  tribunals,  both  legal  and  equitable, 
frequently  interfere  to  control  the  action  of  Church  judicatories  by 
mandamus  and  injunction,  when  they  attempt  to  infringe  or  take 
away  the  rights  of  their  members,  in  a  manner,  or  by  proceedings, 
unauthorized  by  the  stipulation  of  the  parties,  as  provided  in  the 
constitutions,  canons,  or  established  usages  of  the  particular  church 
or  association,  and  for  these  purposes  will  inquire  into,  and  construe 
its  canons  and  constitutions.  But  the  Courts,  regarding  these  as 
contracts  between  parties  voluntarily  entered  into  by  becoming- 
members  of  the  association,  will  not  interfere  to  prevent  the  associa- 
tion from  deciding  any  matter  the  parties  have  agreed  to  submit  to 
the  decisions  of  the  members  of  the  association  or  otherwise,  except 
when  such  submission  or  stipulation  contravenes  some  principle  of 
public  policy,  or  is  against  good  morals." — Appendix  to  12th  An- 
nual Address  of  the  Bishop  of  Illinois,  p.  97. 

The  grounds  and  limits    of   a  rightful  interference  of  the  civil 


52  JUDGE  Jameson's  decision. 

with  the  ecclesiastical  tribunals  of  our  country,  are  still  more  explicit- 
ly stated  by  Edmonds,  J.,  in  the  case  of  Walker  vs.  Wainwright,  16 
Barb.,  487 — in  which  the  ad  interim  bishop  of  New  York  was  the 
party  defendant.     He  said: — 

''  The  only  ground  on  which  this  court  can  exercise  any  jurisdic- 
tion in  this  case  is,  that  the  threatened  action  of  the  defendant 
may  affect  the  civil  rights  of  the  plaintiff,  for  the  protection 
of  which  he  has  a  proper  recourse  to  the  civil  courts.  * 
*****  Conceding  *  *  *  t)jat  here  is  ground  enough 
for  the  action  of  this  court,  it  becomes  material  to  say  that  the 
only  cognizance  which  the  court  will  take  of  the  case,  is  to  inquire 
whether  there  is  a  want  of  jurisdiction  in  the  defendant  to  do  the 
act  which  is  sought  to  be  restrained.  I  cannot  consent  to  review 
the  exercise  of  any  discretion  on  his  part,  or  at  all  to  inquire 
whether  his  judgment  or  that  of  the  subordinate  ecclesiastical  tribu- 
nal can  be  justified  by  the  truth  of  the  case.  I  cannot  draw  to  my- 
self the  duty  of  revising  their  action,  or  of  canvassing  its  manner 
or  foundation,  any  further  than  to  inquire  whether,  according  to  the 
law  of  the  association  to  which  both  of  the  parties  belong,  they  had 
authority  to  act  at  all.  In  other  words,  I  can  inquire  only  whether 
the  defendant  has  the  power  to  act,  not  whether  he  is  acting 
rightly." 

Were  the  authority  of  these  jurists  denied,  that  of  the  eminent 
ecclesiastical  writer,  Murray  Hoffman,  would  be  conceded,  whenever 
the  question  should  be  as  to  the  relative  powers  of  the  civil  tribu- 
nals and  of  the  so-called  courts  of  the  Protestant  Episcopal  Church. 
After  speaking  of  the  writ  of  prohibition  in  the  English  law,  and  of 
its  finding  no  place  in  our  jurisprudence,  this  author  says  : — 

"  Our  courts  of  justice  act  (upon  the  ecclesiastical  courts)  through 
the  medium  of  a  mandamus,  or.a  bill  and  injunction  in  those  cases  in 
which  the  right  to  property  and  civil  privileges  is  involved." — Hoff. 
on  the  Law  of  the  Church,  p.  473. 

I  have  cited  thus  at  length  these  authorities — and  I  might  multi- 
ply them  indefinitely — because  of  the  confusion  in  the  public 
mind  in  regard  to  the  right  of  a  civil  to  interfere  at  all  with  a 
spiritual  court,  even  to  protect  a  civil  right  threatened  by  its  wrong- 
ful action,  as  though  such  interference  in  some  manner  touched  the 
liberty  of  conscience.  The  true  boundary  between  the  two  ju- 
risdictions will  be  found  to  have  been  laid  down  in  the  maxim  em- 


JUDGE  Jameson's  decision.  53 

bodied  in  the  statute  24  Hen.  YIII,  that  "causes  spiritual,  must  be 
judged  by  judges  of  the  spirituality,  and  causes  temporal,  by  tempo- 
ral judges;"  a  maxim  which  lies  at  the  foundation  of  all  the  adjudi- 
cations of  the  civil  courts  in  this  country  in  such  cases.  If  a  cause 
temporal  come  properly  before  a  civil  court,  it  must  entertain  juris- 
diction of  it,  and  render  such  a  judgment  as  the  law  authorizes  and 
requires,  although,  in  doing  so,  it  may  draw  in  question  the  proceed- 
ings of  a  court  spiritual,  acting  contrary  to  law,  or  to  the  rules  of 
its  own  order.  And  a  tribunal  which  should  refuse  to  redress  a 
wrong  coming  thus  within  its  cognizance,  because  it  assumed  to 
cloak  itself  in  the  sacred  garb  of  religion,  would  be  recreant  to  its 
duty. 

The  questions,  then,  here,  as  I  view  the  authorities,  are,  first, 
was  the  so-called  ecclesiastical  court,  when  enjoined,  acting  within 
its  jurisdiction — had  it  power  to  do  the  acts  complained  of?  and  se- 
condly, is  there  dignus  talivindice  modus? — a  threatened  wrong,  such, 
in  its  nature  and  extent,  as  to  warrant  and  justify  this  court  in  in- 
terfering to  arrest  it  ?  As  the  respondents  deny  the  jurisdiction  of 
this  court,  and  the  complainant,  that  of  the  ecclesiastical  court,  it 
will  be  proper  to  adopt  a  method  of  discussion  which  will  throw  upon 
the  complainant,  to  whom,  on  this  motion,  it  belongs,  the  burden 
of  showing  that  the  ecclesiastical  court  had  not,  and  that  this  court 
has,  jurisdiction.  To  establish  these  positions,  three  things  must 
concur.  It  must  be  shown,  1,  that  the  spiritual  court  was  acting 
iiltra  vires;  2,  that  the  result  of  their  action  was  likely  to  be — threat- 
ened to  be  —  the  condemnation  of  the  accused,  and  the  visiting  upon 
him  of  some  spiritual  censure  ;  and,  3,  that  the  consequence  of  such 
censure  would  be  irreparably  injurious  to  the  complainant,  in  respect 
to  his  temporal  interests,  to  his  rights  of  property. 

In  thus  defining  the  law,  I  admit  the  authority  of  those  decisions 
in  which  it  has  been  held,  that  a  court  of  equity  will  not  interfere 
by  injunction  to  restrain  the  publication  of  a  slander  or  libel,  or  the 
commission  of  a  mere  trespass  to  the  person  or  property  of  a  com- 
plainant, or  of  a  crime.  For  these  wrongs,  a  court  of  law  is  com- 
petent to  provide  an  adequate  remedy,  and  so  they  cannot  be  followed 


54  JUDGE  Jameson's  decision. 

hj  consequences  irreparably  injurious  to  liim  who  suffers  them  in 
the  legal  sense  of  those  terms. 

Let  us  see,  then,  if  the  conditions  necessary  for  sustaining  this 
injunction  exist  in  this  case.  And,  first,  had  the  respondents  juris- 
diction, as  a  court,  to  try  the  defendant,  as  they  assumed  to  do  ? 

Objections  to  their  jurisdiction  were  made  by  the  complainant  to 
the  so-called  court  itself,  at  the  trial,  upon  several  grounds, but  were 
overruled.  These  were  objections,  1,  to  the  commission  under  which 
the  presentment  of  this  complainant  was  made;  2,  to  the  citation  to 
appear ;  3,  to  the  personal  competency  of  the  assessors  to  act  as 
his  triers,  accompanied  by  the  claim  of  a  right  of  challenge,  because 
of  alleged  bias  or  prejudice ;  4,  to  the  constitution  of  the  court,  as 
uncanonical ;  and  5,  to  the  presentment,  or  indictment. 

To  the  commission,  it  was  objected  that  it  was  void,  in  that  the 
bishop,  by  whom  it  was  issued,  did  not  therein  purport  to  issue  the 
same  upon  anyone  of  the  three  grounds  required  by  the  canon  un- 
der which  he  pretended  to  proceed,  and  which  prescribed  the  only 
mode  in  which  he  could  proceed ;  that  the  basis  of  the  Court  and  of 
all  its  subsequent  proceedings  was  thus  faulty,  and  that  upon  it  ju- 
risdiction could  not  be  taken  by  either  the  bishop  or  standing  com- 
mittee to  organize  the  Court,  the  presenters  to  present,  or  the  as- 
sessors to  try  the  supposed  offender.  As  no  other  objection  need  be 
much  considered,  if  this  one  be  good,  I  shall  examine  it  at  length. 

Canon  XX.  of  the  Church  in  the  Diocese  of  Illinois  provides  that 
"Whenever  the  bishop  shall  have  reason  to  believe,  on  information 
being  given  by  a  major  part  in  number  of  the  vestry  of  any  church 
of  which  the  accused  is  a  minister,  or  by  any  three  presbj^ters  of  this 
diocese  entitled  to  seats  in  the  General  Convention,  or  '  from  public 
rumor,'  as  contemplated  by  Section  2d,  Canon  XXXVII  of  the 
General  Convention,  that  any  clergyman  is  under  imputation  of 
having  been  guilty  of  any  offense  or  misconduct  for  which  he  is  liable 
to  be  tried,  and  that  the  interest  of  the  church  requires  it,  it  shall 
be  his  duty  to  appoint  three  persons,"  kc,  to  examine  and  make  pre- 
sentment of  the  offender. 


JUDGE  Jameson's  decision.  55 

Now,  admitting  that  the  offense  charged  against  the  complainant 
is  one  for  which  he  is  liable  to  be  tried  in  some  manner,  it 
is  clear,  that  he  could  not  be  tried  for  it  under  this  Canon, 
except  in  accordance  with  its  prescriptions.  In  other  words, 
to  organize  a  court  to  try  the  offender  under  Canon  XX,  the 
bishop  must  have  had  reason  to  believe  the  existence  of  the  offense 
from  one  of  the  three  sources  mentioned.  And,  not  only  should  he 
in  fact  proceed  on  one  of  the  grounds  prescribed,  but  the  commission 
should  state  explicitly  on  what  ground  he  pretends  to  proceed.  This 
latter  requisite  rests  on  the  principle,  that  an  offender,  tried  before 
a  court,  civil  or  ecclesiastical,  is  entitled  to  have  specified  in  the  re- 
cord of  such  trial  the  grounds  on  which  the  tribunal  rests  its  right 
to  try,  for  the  purpose,  first,  of  proving  his  previous  conviction  if 
again  arraigned  for  the  same  offense  ;  and,  secondly,  of  exhibiting  to 
any  other  tribunal,  authorized  to  examine  into  the  jurisdiction  of  the 
court,  the  grounds  upon  which  it  assumed  to  proceed.  About  the 
former  requisite,  although  disputed  by  the  respondents,  there  can, 
in  my  judgment,  be  but  little  doubt.  I  might  rest  my  decision  up- 
on the  authority,  so  much  and  so  justly  esteemed  by  the  respondents, 
of  the  late  Chief  Justice  of  this  court.  In  his  opinion,  in  the  case  of 
the  Rev.  Mr.  Hagar,  where  the  same  objection  was  made,  it  was 
ruled  by  him,  upon  this  point,  that  the  provisions  of  Canon  XX  fur- 
nish an  exclusive  rule  of  procedure,  whether  they  are  to  be  taken 
as  a  grant  of  new  powers  to  the  bishop,  or  as  a  limitation  of  powers 
before  exercised — a  view  in  which  I  fully  concur.  If  it  were  possible 
however,  to  doubt  that  such  should  be  the  construction,  the  doubt 
would  be  dispelled  by  section  10  of  the  same  Canon,  which  provides, 
that  "  no  clergyman  shall  be  suspended,  or  receive  any  public  cen- 
sure from  the  bishop  of  the  diocese,  Avithout  having  been  adjudged 
thereto  in  the  manner  provided  for  by  this  Canon."  It  is  true,  the 
word  "  deposed"  or  "  degraded"  is  not  used  ;  but,  not  to  speak  of 
the  improbability  that  the  bishop  should  be  forbidden  to  administer 
the  two  lower  forms  of  spiritual  punishment,  admonition  and  suspen- 
sion, except  upon  a  trial  in  conformity  to  the  Canon,  but  should  be 
allowed  to  depose  or  degrade  at  pleasure,  I  think  the  word  "  de- 
graded "  or  "deposed"  is  involved  in  the  word    "  censure,"  which, 


56  JUDGE  Jameson's  decision. 

in  ecclesiastical  law,  is  a  technical  term.  It  means  "  a  sentence  of 
condemnation,  or  penalty,  inflicted  on  a  member  of  a  church  for 
malconduct,  by  which  he  is  deprived  of  the  communion  of  the 
church,  or  prohibited  from  executing  the  sacerdotal  office."  Webster's 
Diet.,  verb,  '•^censure.''  Accordingly,  Hofiman,  in  his  Law  of  the 
Church,  says  : — "  The  constitution  has  recognized  three  kinds  of 
ecclesiastical  censure,  admonition,  suspension  and  degradation."  p. 
417.  It  may  fairly,  therefore,  be  said  to  be  the  meaning  of  the  10th 
section,  that  neither  degradation,  suspension  nor  admonition  shall  be 
inflicted  upon  any  clergyman  by  his  bishop  without  his  having  been 
adjudged  thereto  in  the  manner  provided  for  by  Canon  XX.  But, 
suppose  the  words  "  public  censure"  are  to  be  taken  in  their  popular 
sense  as  equivalent  only  to  "  public  rebuke,''  the  section  would  read, 
that  "no  clergyman  shall  be  suspended,  nor  even  receive  a  public 
rebuke  or  censure,  without  having  been  adjudged  thereto,"  &c. 
Could  a  public  sentence  of  degradation  from  the  ministry,  which,  ac- 
cording to  the  general  constitution  of  the  church,  (Title  2,  Canon  10, 
Section  2),  must  be  total,  and  not  merely  from  a  higher  to  a  lower 
grade,  be  said  not  to  involve  a  public  rebuke  or  censure  of  the  of- 
fender ? 

Conceding  this  construction  to  be  correct,  the  commission  issued 
by  the  bishop  to  the  presenters  was  wholly  void,  as  beyond  his  pow- 
er to  issue,  or  their  power  to  receive.     It  reads  as  follows  : 

"  To  the  Rev.  George  F.  Cushman,  &c.,  &c. : 

"  Having  been  credibly  informed  that  the  Rev.  Charles  E.  Cheney 
had,  in  substance,  stated,"  &c., — detailing  an  interview  and  conver- 
sation held  by  the  bishop  with  Mr.  Cheney,  —  "I,  therefore,  have 
reason  to  believe  that  the  said  Rev.  Charles  E.  Cheney  is  under  im- 
putation of  being  guilty,  &c.  *  *  *  Therefore,  in  obedience  to 
the  prescription  of  Canon  XX,  of  the  Diocese  of  Illinois,  I  do  here- 
by appoint  you,  &c.  (Signed,)  "  H.  J.  Whitehouse,  Bishop  of  Il- 
linois." 

Here  the  ground  on  which  the  commission  was  issued  was  credi- 
ble information — a  ground  not  contemplated  in  Canon  XX,  as  dis- 
tinct from  those  prescribed,  and  not  synonymous  with,  or  equivalent 
to,  either  of  them.  By  whom  was  the  credible  information  imparted? 


JUDGE  Jameson's  decision.  57 

It  is  not  pretended  that  it  was  imparted,  in  fact,  in  either  of  the 
three  modes  named  in  the  Canon  :  by  a  majority  of  the  vestry  of 
Christ  Church,  by  three  Presbyters  of  the  Diocese,  or  by  public  ru- 
mor. Was  it  credible  information  imparted  by  the  accused  himself 
or  by  some  enemy  of  the  accused  ?  It  is  idle  to  conjecture,  for  the 
facts  are  not  disclosed,  unless  it  may  be  inferred  from  the  context 
that  the  accused  himself  had  imparted  it  in  the  conversation  referred 
to  in  the  commission.  It  is  noteworthy,  however,  that  the  same 
form  of  words,  "  credibly  informed,"  was  used  as  the  basis  of  the 
commission  in  the  Hagar  case,  which  was  issued  under  the  same  Canon, 
and  that  it  was  then  condemned  by  this  court  as  not  conformable 
to  that  Canon.  Why  is  this  indefinite  form  of  words  thus  adhered 
to,  when  probably  no  case  could  arise,  examinable  under  Canon  XX, 
in  which  one  of  the  three  forms  could  not  be  truthfully  followed  ? 
It  may  be,  that  the  power  claimed,  on  the  argument,  to  be 
inherent  in  the  Episcopal  office,  of  causing  the  arraignment  of  of- 
fenders ad  lihitwji,  irrespectively  of  the  prescriptions  of  the  Canons, 
is  too  valuable  to  be  relinquished  without  a  struggle,  and  that  the 
present  is  deemed  a  fitting  occasion  again  to  assert  it,  and,  if  possible, 
to  secure  its  establishment. as  the  law  of  the  Church.  The  counsel 
for  the  respondents  claimed,  that  the  commission  in  this  case  was 
issued  in  the  form  in  question  advisedly,  and  that  the  power  to  act 
outside  of  the  Canon,  even  when  pretending  to  act  according  to  it, 
was  inherent  in  the  Bishop,  and  the  attempt  was  made  to  sustain 
that  position  by  the  citation  of  authorities.  I  shall  not  pursue  the 
inquiry  at  much  length,  but  remark,  that,  in  my  opinion,  the  author- 
ities cited  have  but  slight  tendency  to  sustain  the  point.  An  ex- 
tract was  made  from  the  canonist,  Van  Espen,  to  the  effect  that  at 
some  indefinite  past  time  [oUm)  bishops  exercised  the  right  of  mak- 
ing inquisition  into  all  crimes,  even  those  which  were  occult,  and  of 
instituting  proceedings  for  their  punishment.  But  how  much  force  and 
applicability  the  citation  has  here  may  be  inferred  from  the  title  of 
the  chapter,  which  gives  a  fair  synopsis  of  its  contents  :  ^'■Quomodo 
olim  Episcopi  de  omnibus  criminibus  cognoverint,  et  quomodo  haec 
Episeoporum    auetoritas  imminuta." — ^'- How  formerly   the   bishops 


58 


JUDGE   JAMESON  S   DECISION. 


took  cognizance  of  all  crimes,  and  how  this  jurisdiction  of  the  bish- 
ops came  to  be  curtailed."  Op.  Om.  Can.  Pt,  III,  Tit.  IV.  Ch.  I, 
p.  42.  Reference  was  also  made  to  "  An  Essay  on  the  Episcopate," 
bj  Dr.  Evans,  in  which  the  inherent  power  of  the  bishops  is  strong- 
ly asserted.  This  author,  however,  breaks  the  force  of  his  argument, 
for  our  purpose,  by  conceding,  that  the  Church  has  power  to  regu- 
late the  exercise  of  the  power,  provided  it  do  not  take  it  away.  If 
the  rule  made  by  the  Church  be  such  as  to  take  away  the  power,  it 
ought  not,  he  says,  to  be  obeyed.     To  use  his  own  words, 

"  The  inherent  power  remains  unaffected  by  the  rule.  But  if  it 
relates  to  the  exercise  of  the  power,  it  must  be  obeyed;"  and  he  adds: 
"  The  difference  is  this.  Before  the  rule  was  made,  the  power  might 
have  been  freely  exercised,  in  any  manner  which  the  possessor  chose. 
After  the  rule  was  made,  it  could  only  be  exercised  in  conformity 
with  the  restrictions  imposed  by  the  rules."     pp.  154-155. 

Another  authority  relied  upon  to  prove  that  the  bishops  have  the 
inherent  power  in  question,  is  Hale's  Precedents  in  Criminal  Cases. 
The  passage  referred  to  is  as  follows : 

"  According  to  the  practise  of  these  ecclesiastical  courts  in 
criminal  causes  ***********  there  are 
three  distinct  methods  of  indictment :  1.  Inquisition :  2.  Accu- 
sation :  3.  Denunciation.  In  the  first  form  of  proceeding,  that  by 
Inquisition,  the  judge  is  in  fact  the  accuser.  He  may  proceed 
against  the  party  from  his  own  personal  knowledge,  or  from  com- 
mon fame  of  crime  committed,  and  no  other  step  is  required  to  bring 
the  party  before  the  court,  except  citation."     p.  57  of  the  Essay. 

It  is  hardly  worth  while  to  call  attention  to  the  inapplicability  of 
this  passage  to  ecclesiastical  courts  in  our  own  country.  The  work 
cited  relates  to  the  jurisdiction  and  practice  of  courts  Christian  dur- 
ing the  period  beginning  with  the  15th  and  ending  with  the  17th 
centuries  in  England,  Avhen,  as  now,  such  tribunals  were  real  courts, 
but  when  the  English  people  were  not  yet  completely  emancipated 
from  priestly  rule.  The  offenses  punished  in  those  courts  were  prin- 
cipally of  the  minor  grade,  such  as  laughing  in  church,  want  of 
conjugal  affection,  disrespect  to  the  priests,  incontinence  both  of 
laity  and  clergy,  and  the  like,  of  most  of  which,  I  need  hardly  say, 
neither  the  spiritual  nor  the  temporal  courts  in  England  are  now 
permitted  to   take   cognizance.     Such   a  mode  of  trial,    properly 


JUDGE  Jameson's  decision.  59 

styled  a  trial  by  Inquisition,  Avas  then  tolerated,  as  it  was  for  many 
years  later  in  Spain  and  other  Catholic  countries.  Is  it  claimed, 
that  with  the  Protestant  doctrines  of  the  Church  of  England,  we 
have  in  America  adopted  this  mode  of  trial  by  Inquisition — in  which, 
according  to  the  authority  cited,  the  bishop,  by  virtue  of  his  inherent 
power,  may  be  at  once  the  accuser  and  the  judge  ?  Not  to  press  this 
point,  however,  I  observe,  that  in  one  respect  the  Avork  cited  is  of 
real  service  in  this  inquiry.  It  is  made  up  of  precedents  of  pre- 
sentments made  to  the  bishops  for  the  offenses  referred  to,  and  from 
them  it  appears,  that  great  care  Avas  taken  in  each  presentment  to 
state  the  ground  on  Avhich  it  Avas  based.  If  it  Avas  founded  on 
"credible  information,"  communicated  by  an  informer,  the  form 
used  Avas,  "A.  '^.  notatur  officio  quod,'"  &c.  But,  Avhere  the  pro- 
ceeding was  based  upon  "public  rumor,"  the  form  Avas,  "A.  B.  no- 
tatur  officio,  fama  puhlica  referente,  quod,"  &c.,  from  Avhich  the  infer- 
ence is  authorized,  that  even  in  the  proceeding  by  Inquisition — the 
most  odious  form  of  ecclesiastical  inquiry — it  was  deemed  necessa- 
ry to  state,  and  that  truly,  on  the  face  of  the  record,  the  source  of  the 
information  on  Avhich  the  proceeding  was  instituted. 

It  may  be  urged,  that  the  objection  I  am  now  considering  is  a 
merely  technical  one,  and  that  it  is  suflBcient,  if  a  presentment  has 
been  made  upon  some  sort  of  information,  or  even  on  the  bishop's 
OAvn  motion,  Avithout  other  information  than  that  derived  from  his 
OAvn  senses.  To  this  it  is  enough  to  reply,  that  the  legislature  of  the 
Church  has  apparently  not  so  vieAved  the  matter.  It  has  limited  the 
bishop  to  certain  specified  cases  and  modes,  presumptively  for  good 
reasons.  We  may  suspect  one  of  those  reasons  to  be,  to  put  it  be- 
yond the  bishop's  poAver  to  act  upon  his  OAvn  motion — upon  informa- 
tion culled,  perhaps,  from  conversations  held  by  himself  with  the  ac- 
cused, and  Avith  respect  to  Avhich  the  recollections  of  the  tAvo  may  be 
at  variance.  It  may  have  been  its  Avish  to  avoid  the  painful  specta- 
cle of  a  bishop  appearing  in  a  public  prosecution  as  both  court,  or 
creator  of  the  court,  as  here,  and  prosecuting  Avitness,  against  one  of 
his  OAvn  clergy.  Perhaps  it  deemed  the  method  of  trial  by  Inquisi- 
tion, so  dear  to  the  religious  persecutors  of  past  ages,  in  Avhich  the 
bishop  first  scented  the  heresy,  and  then  dragged  the  heretic  before 


60  JUDGE  Jameson's  decision. 

himself,  to  be  judged  by  himself  as  judge,  upon  testimony  furnished 
by  himself  as  witness,  unsuited  to  our  country  and  times. 

For  these  reasons,  I  have  no  doubt  the  commission  in  question 
was  utterly  void,  and  conferred  no  jurisdiction  on  any  of  the  parties 
subsequently  taking  steps  in  the  matter.  The  presenters  could  not 
under  it  present  the  complainant  to  the  bishop,  nor  could  the  bishop 
issue  his  citation,  or  select  the  eight  presbyters  to  form  the  court, 
as  provided  by  Canon  XX. 

It  was  suggested,  on  the  argument,  that  the  words,  "credibly 
informed,"  are  substantially  equivalent  to  "informed  by  public  ru- 
mor;" that  this  proceeding  ought,  therefore,  if  necessary  to  sustain  it, 
to  be  regarded  as  founded  upon  public  rumor.  I  do  not  think  the  two 
forms  of  words  are  equivalent,  since,  as  I  have  intimated,  the  "credible 
information"  may  have  been  the  private  confession  of  the  accused  to 
the  accuser,  which  could  with  no  propriety  be  called  a  public  rumor. 
But  conceding  that  the  two  are  equivalent,  and  that  this  is  a  proceeding 
based  upon  public  rumor,  it  is  contended  by  the  complainant,  that 
the  offenses  charged  against  him  are  not  such  as  can  be  inquired  into 
in  a  proceeding  based  upon  public  rumor.  The  provision  of  Canon 
XX  is,  that  "whenever  the  bishop  shall  have  reason  to  believe  * 
*  *  from  public  rumor,  as  contemplated  by  Section  2nd,  Canon 
XXXVII  of  the  Greneral  Convention,"  &c.  Now,  the  section  2nd  re- 
ferred to  is,  that  "  if  a  minister  of  this  church  shall  be  accused  by 
public  rumor,  of  discontinuing  all  exercise  of  the  ministerial  office," 
&c., — specifying  certain  offenses — "it  shall  be  the  duty  of  the 
bishop  *  *  *  to  see  that  an  inquiry  be  instituted,"  &c.  It  is 
claimed  by  the  complainant,  that  amongst  these  offenses  are  not  reck- •' 
oned  those  with  which  he  is  charged,  but  that,  if  they  be  offenses  at 
all,  they  are  such  as  can  be  inquired  into  only  upon  information  com- 
ing from  some  other  source  than  public  rumor.  Without  going  at 
much  length  into  the  question,  I  am  of  opinion,  that  the  point  is 
well  taken,  assuming  the  Canon  XXXVII,  Sec.  2nd,  to  read  as  above 
recited.  The  offenses  charged  against  the  complainant  are  a  violation 
of  the  constitution  of  the  church  in  respect  to  alteration  of 
the    book     of    common    prayer,     and  of    his    ordination    vow    to 


JUDGE  Jameson's  decision.  61 

conform  to  the  doctrine,  discipline  and  worship,  as  the  church  has 
received  the  same — offenses  not  specified  or  involved  in  section 
2nd.  On  the  other  hand,  the  respondents,  admitting,  as  I  under- 
stand them  to  do,  that  the  offenses  charged  are  not  included  in  the 
2nd  section,  as  quoted  by  me,  contend  that,  at  the  session  of  the 
General  Convention,  held  in  1868,  this  section  was  amended  so  as 
to  make  the  offenses  therein  specified  and  all  others  within  the 
cognizance  of  the  ecclesiastical  courts,  examinable  upon  present- 
ments based  upon  public  rumor.  But,  admitting  that  the  Canon 
read  to  the  court  as  the  amended  one,  is  in  terms  such  as  is  contend- 
ed, there  are  two  answers  to  the  claim  set  up  by  the  respondents. 
1.  It  does  not  appear  satisfactorily  that  the  supposed  new  section 
has  ever  been  adopted  and  published  as  an  amendment  to  the  Canon 
in  question.  The  bill  denies,  and  the  answer  avers,  that  it  has  been 
so  adopted  and  published,  and  beyond  that  there  is  nothing  in  the 
shape  of  evidence  on  either  side,  except  that  a  printed  volume  is 
produced  containing  the  supposed  amendment,  bearing  the  date, 
on  its  title  page,  of  1869.  2.  As  the  supposed  amendment  could  not 
be  in  force  in  this  Diocese,  until  the  date  of  its  publication  (1869,) 
or  certainly  of  its  adoption  in  convention  (1868 — in  what  month 
does  not  appear) — it  can  have  no  application  to  offenses  committed 
two  years  ago,  or  even  six  months  ago.  As  to  such  ofl'enses  it 
would  be  ex  post  facto  legislation. 

It  may  be  well,  here,  to  notice  another  claim  of  the  respondents. 
The  answer  sets  up,  that,  in  the  Hagar  case,  the  proceeding  was  in- 
stituted upon  credible  information,  precisely  as  here  ;  that  at  the  an- 
nual Diocesan  Convention  of  Illinois,  following  soon  after  that  case 
was  tried,  the  proceedings  therein  were  passed  in  review,  and  the 
question  raised  of  amending  Canon  XX,  but  that,  upon  due  consider- 
ation, the  whole  matter  was  laid  upon  the  table,  and  that  the  an- 
swer of  the  bishop,  together  with  the  opinion  and  decision  of  this 
Court,  and  the  argument  of  the  solicitor  for  the  respondents  in  that 
cause,  were,  by  the  convention,  ordered  to  be  published  with  its  jour- 
nal, which  was  done.  It  is  claimed  that,  by  this  action,  the  conven- 
tion ratified  the  position    taken  in  that  case  as  well  as  here,  as   to 


62  JUDGE  Jameson's  decision. 

the  right  of  the  bishop  to  proceed  upon  credible  information  under 
Canon  XX.  I  do  not  think  this  follows.  The  truth  may  be,  that, 
for  some  reason  unexplained,  the  canon  was  deemed  satisfactory  as 
it  stands  ;  or  that  the  question  was  thought  not  to  be  ripe  for  decision 
until  the  church  at  large  had  been  informed  as  to  its  merits.  To 
give  to  the  constituent  body  that  information  may  have  been  the  ob- 
ject of  the  convention  in  publishing  the  whole  case.  Besides,  if  the 
action  of  the  convention  indicates  any  opinion  upon  the  point  now 
under  consideration,  the  complainant  may  fairly  claim,  that  it  sanctions 
the  view  taken  of  it  by  Judge  Wilson,  that  the  proceeding,  upon  credi- 
ble information  was  in  direct  violation  of  canon  XX  of  this  diocese. 
As  to  the  other  objections  raised  by  the  complainant  at  the  trial,  and 
overruled  by  the  respondents,  I  shall  only  say  that,  after  a  careful 
examination  of  the  Canons,  I  am  satisfied,  except  in  case  of  that  re- 
lating to  the  sufficiency  of  the  citation,  that,  although  not  all  of  them 
going  to  the  jurisdiction  of  the  court,  they  ought  to  have  been  sus- 
tained by  the  court.  So  far  as  concerns  the  right  of  challenge,  it  is 
true,  the  Canons  are  silent,  except  that  they  permit  to  the  accused  a 
selection  of  three  or  five  assessors  out  of  a  list  of  eight  furnished  by 
the  bishop.  But  the  point  of  the  objection  is,  that  no  challenge  was 
allowed  for  cause  against  the  whole  array,  nor  against  the  body  as  it 
stood  after  casting  out  the  names  above  five.  And,  it  is  no  answer 
to  say,  that  the  persons  challenged  for  cause  were  judges,  and  not 
simply  jurors.  They  were  judges  of  the  facts  and  of  the  law,  pre- 
cisely as  jurors  are  in  criminal  cases  under  our  laws.  See  Canon 
XX,  Section  T,  Diocese  of  Illinois.  It  would  be  monstrous  to  hold 
that  the  members  of  a  tribunal  having  such  universal  powers  were 
not  examinable  as  to  the  existence  of  prejudgment  or  bias  against  the 
accused,  whose  fate  rested  on  their  finding  of  facts  as  well  as  law. 
In  regard  to  the  objection  to  the  form  of  the  presentment,  the 
authorities  in  the  civil,  canon,  common  and  military  law,  are  unani- 
mous in  holding  that  a  presentment,  like  the  one  in  this  case,  is 
wholly  insufficient.  There  are  three  charges  against  the  complain- 
ant here,  and  under  each  there  are  several  specifications  of  the  ofien- 
ses  charged  against  him.     These  specifications  are  simply,  that,  said 


JUDGE  Jameson's  decision.  63 

complainant,  at  divers  times  within  the  last  two  years,  or  within  the 
last  six  months,  whilst  officiating  as  rector  of  Christ  Church,  Chicago, 
had  been  guilty  of  omitting  a  certain  word,  or  words,  from  the  bap- 
tismal service,  without  any  other  specification  of  time,  place  or  cir- 
cumstances. I  presume  I  need  only  state  this  fact  to  show  the  utter 
illegality  of  such  a  presentment.  How  could  the  accused  prepare 
for  trial  upon  such  charges  with  the  least  hope  or  probability  of  suc- 
cess, if  innocent  ?  But,  the  authority  of  Mr.  Hoffman,  the  most 
eminent  writer  upon  ecclesiastical  law  in  this  country,  would  be  de- 
cisive of  the  question,  if  there  could  be  any  doubt  upon  it.  He  says, 
(Law  of  the  Church,  pp.  401-402) : 

"  It  will  be  noticed  that  in  the  rules  of  numerous  dioceses, 
it  is  directed  that  the  presentment  shall  specify  the  offense 
with  reasonable  certainty  as  to  time,  place  and  circumstances. 
This  is  presumed  .to  be  absolutely  necessary  in  every  case,  al- 
though it  may  not  be  directed  in  a  canon.  Whether  the  pre- 
sentment is  assimilated  to  the  articles  of  the  canon  law,  the  libel  of 
the  civil  law,  the  bill  of  the  court  of  chancery,  or  the  indictment  of 
the  criminal  code,  the  rule  is  universal" — citing  numerous  authori- 
ties. He  then  proceeds  :  "  In  the  application  of  this  rule  some  lat- 
itude is  necessarily  allowed.  To  fix  it  with  legal  certainty  is  impos- 
sible. To  allege,  for  example,  that  an  offense  was  committed  at  va- 
rious times  within  a  diocese  would  be  absurdly  illegal ;  to  aver  that 
it  was  committed  at  various  times  or  at  some  time  within  a  certain 
year,  would  not  be  sufficient.  But  to  allege  the  act  to  have  been  done 
within  a  particular  city  or  town,  in  a  particular  month  of  a  certain 
year,  would,  it  is  presumed,  be  legal."      p.  402. 

See,  also,  as  to  the  degree  of  certainty  required  by  the  general 
principles  of  the  law,  3  Greenleafs  Evidence,  section  471. 

As  to  the  objection  to  the  citation,  that  it  summoned  the  com- 
plainant to  trial  on  thirty  days'  notice,  without  having  been  preceded 
by  a  twenty  days'  notice  to  appear  for  the  purpose  of  constituting  the 
conrt,  —  inasmuch  as  the  Canons  may,  with  some  show  of  reason,  be 
construed  as  contended  for  by  the  respondents — I  shall  only  observe 
that,  in  my  judgment,  the  better  construction  would  be  that  con- 
tended for  by  the  complainant ;  that  there  are  intended  by  the  Canon 
to  be  two  separate  citations,  one  to  appear  and  select  the  judges 
or  assessors,  of  not  less  than  twenty  days  over  and  above  the  time 


64  suDGE  Jameson's  decision. 

required  to  travel  to  the  place  of  appearance,  (section  9,  Canon  XX,) 
and  one  of  at  least  thirty  days  to  attend  for  trial,  (section  4,  same 
Canon.)  That  this  is  the  true  construction,  may  be  inferred  from 
the  inconvenience  and  injustice  likely  to  follow  the  other,  and  from 
the  fact  that  in  the  Canons  of  the  General  Convention  for  the  trial  of 
a  bishop,  which  are  more  clearly  worded,  a  double  notice  is  required  ; 
first,  of  not  less  than  twenty  days,  to  appear  to  select  the  bishops  to 
form  the  court ;  and,  secondly,  of  not  less  than  two  nor  more  than 
six  calendar  months,  to  attend  for  trial. 

Not  stopping  to  consider  the  other  objections,  it  is  proper  now  to 
inquire  whether  the  complainant,  as  contended  by  the  respondents, 
by  objecting  to  the  presentment,  waived  the  antecedent  objections 
raised  by  him  to  the  competency  or  jurisdiction  of  the  court.  I 
think  he  did  not.  Were  the  court  in  question  one  of  general  juris- 
diction, the  point  would  have  been  one  of  much  weight.  Such  a 
court  is  presumed  to  have  jurisdiction  unless  the  contrary  appears. 
So,  a  court  of  limited  jurisdiction,  having  jurisdiction  of  the  subject 
matter,  is  presumed  to  have  it  also  of  the  person,  if  he  appear  and 
demur  to  an  indictment  against  him,  or  go  to  trial  on  the  merits. 
To  hold  otherwise,  would  be  to  trifle  with  the  administration  of  jus- 
tice. But,  if  a  court  of  limited  and  special  jurisdiction,  on  the  face 
of  its  record,  has  no  jurisdiction  of  the  subject  matter,  appearance 
and  consent  do  not  give  jurisdiction.  Thus,  in  the  Federal  courts, 
if  it  do  not  appear  on  the  record,  that  there  is  jurisdiction,  both  in 
respect  to  citizenship,  and  to  the  amount  in  controversy,  consent 
will  not  obviate  the  difficulty,  and  objection  may  be  raised  at  any 
stage  of  the  proceedings,  even  on  error  in  the  Supreme  Court. 
Now,  that  the  court  in  question,  granting  that  it  was  a  court  at  all, 
was  one  of  this  kind,  will  not  be  denied.  In  the  proceedings  in  the' 
Hagar  case,  there  appears  a  letter  to  that  gentleman  from  the 
Bishop  of  this  Diocese,  in  which  these  words,  respecting  the  court  in 
that  case — which  was  precisely  the  same  in  its  constitution  as  this 
is — -vy^ere  used  by  the  Bishop  :  "  The  court  being  one  of  special  crea- 
tion and  limited  jurisdiction,  does  not  exist  until  convened  by  due 
canonical  selection,"   &c.     If  this  be  bo,  it  must  be  subject  to  the 


JUDGE  Jameson's  decision.  65 

same  rule  that  governs  all  tribunals  of  its  class.  But,  it  must  not 
be  forgotten,  that  here  the  respondents  do  not  constitute  a  court, 
properly  speaking,  but  a  board  of  arbitrators,  meeting  under  the 
stipulations  of  a  contract,  if  meeting  at  all  lawfully.  How  idle  to 
contend,  in  such  a  case,  that  a  party  defendant,  who  protests  to  such 
a  tribunal,  at  every  step,  that  it  has  no  jurisdiction,  that  it  is  not 
proceeding  according  to  the  contract,  but  against  both  its  spirit  and 
its  letter,  and  who  affirms,  that  he  does  not  and  will  not  consent  to 
it,  or  waive  any  of  his  rights  under  his  contract, — after  all  waives 
antecedent  objections  by  pointing  out  to  his  assumed  judges,  that  the 
presentment  against  him  is,  by  the  law  authorities  of  his  accusers, 
absurdly  illegal,  as  wanting  the  indispensable  requisites  of  a  valid 
presentment!  I  need  not  further  press  this  consideration,  however, 
because  it  is  clear  law,  that  the  proceedings  of  tribunals  like  this, 
created  for  a  special  and  limited  purpose,  assuming  to  act  upon  a 
subject  matter  not  comimitted  to  them,  or  in  a  manner  contrary  to 
that  prescribed  by  the  law  of  their  creation,  are  absolutely  void, 
and  are  incapable  of  being  made  valid  by  any  consent  or  waiver  of 
the  parties.  Thus,  in  the  case  of  the  State  v.  Richmond,  6  Fester's 
N.  H.  R.,  232,  the  court,  after  an  exhaustive  examination  of  the 
question,  say : 

"  The  jurisdiction  of  courts  as  to  the  subject  matter  may  be  lim- 
ited in  various  ways,  as  to  the  original  proceedings  or  those  of  an 
appellate  character  ;  to  civil  or  criminal  cases ;  cases  at  common 
law,  in  equity,  or  in  the  admiralty  ;  to  probate  cases,  or  cases  under 
special  statutes.  They  may  be  restricted  by  the  nature  or  amount 
of  the  controversy;  confined  to  officers  having  certain  prescribed 
qualifications;  to  single  magistrates,  or  to  several  acting  jointly. 
Their  powers  may  extend  to  a  State,  county  or  town,  kc.  They 
may  be  authorized  to  exert  their  powers  only  at  particular  places, 
and  at  specified  times,  and  no  others.  Their  jurisdiction  may  be 
confined  to  particular  classes  of  persons  and  to  proceedings  com- 
menced by  particular  modes,  as  by  petition ;  by  complaint  under 
or  without  oath,  and  in  various  other  modes  not  necessary  to  refer 
to.  All  these  restrictions  fall  within  the  class  of  exceptions  which 
relate  to  the  subject  matter  of  the  jurisdiction.  They  all  fall  within 
the  rule  that  consent  tvill  not  confer  jurisdiction.'' — Per  Bell.  J.  pp. 
240-241. 

As  the  court  of  respondents,  then,  were  acting   in  violation  of 

5 


66  JUDGE  Jameson's  decision. 

the  Canons,  and  so,  had  no  power  to  act  at  all,  there  is  thus  shown 
to  exist  the  first  of  the  three  conditions  of  jurisdiction  to  enjoin  them 
in  this  court,  viz.,  the  court  acting  ultra  vires.  Let  us  see  if  the 
second  condition  also  exists,  viz.,  a  reasonable  certainty,  or  a  rea- 
sonable ground  to  fear,  that  the  result  of  allowing  the  court  to  pro- 
ceed would  be  an  infliction  upon  the  complainant  of  a  sentence  of 
suspension  or  degradation   from  the  ministry. 

The  bill  makes  a  case,  on  the  part  of  the  bishop,  the  creator  of 
the  court,  of  prejudice  and  of  a  predetermination  to  convict  the 
complainant — to  cause  him  to  be  tried  only  by  those  whose  views  were 
adverse  to  those  of  complainant  on  the  question,  substantially,  at  is- 
sue ;  all  other  persons  being,  as  the  bishop  is  charged  to  have  declared, 
ineligible  as  judges  or  assessors.  It  is  averred,  in  substance,  that  the 
bishop  informed  complainant  tliat  unless  he  avoided  a  trial  by  conform- 
ing to  his  views  of  duty,  there  could  be  but  one  result,  and  that  deposi- 
tion from  the  ministry.  It  is  also  stated  that  the  respondents  are  largely 
influenced  by  the  bishop  of  Illinois,  and  that  said  bishop  has  threat- 
ened complainant  with  deposition  from  the  ministry ;  that  although 
complainant  is  advised  by  counsel,  that  he  cannot  be  lawfully  de- 
posed from  the  ministry,  yet  that  should  the  said  five  persons  claim- 
ing to  sit  as  a  court  be  permitted  to  proceed,  and,  passing  sentence 
of  deposition,  the  same  should  be  approved,  and  deposition  be  inflic- 
ted upon  him,  however  illegal  such  a  course  might  be,  complainant 
would,  nevertheless,  be  practically  subjected  to  the  penalties  of  such 
sentence. 

Now  these  allegations  of  the  bill  are  not  denied  or  alluded  to  in 
the  answer  of  the  respondents,  except  that  which  charges  that  they 
are  largely  influenced  by  the  bishop  of  Illinois  in  the  matter  of  said 
trial,  and  that  which  charges  that  they  labor  under  the  supposition 
that  sentence  of  deposition  might  be  passed  upon  the  complainant, 
if  found  guilty,  both  of  which  they  deny,  although,  in  case  of 
the  latter  charge,  with  a  material  change  of  the  phraseology.  The 
charges  impugning  the  bishop,  as  having  threatened  complainant 
with  deposition  and  with  a  predetermination  to  cause  him  to  be  con- 
victed and  deposed,  are  not  denied  by  the  respondents,  even  on  infor- 


JUDGE   JAMESONS   DECISION.  67 

mation  and  belief.  The  bishop,  it  is  true,  in  his  affidavit  filed  with 
the  answer,  enters  a  denial  of  these  charges,  but  being  pertinent  to 
no  averments  in  or  issues  made  by  the  answer,  the  affidavit  can  hard- 
ly be  said  to  support  it  although  filed  with  it,  especially,  where,  as 
here,  the  motion  is  made  upon  bill  and  answer,  as  well  as  upon  bill 
alone.  So  far  as  the  respondents  arc  concerned,  therefore,  they  must, 
as  a  matter  of  pleading,  upon  this  motion,  be  considered  as  not  de- 
nying those  averments  of  the  bill  which  they  do  not  themselves,  in 
soma  form,  nij^ative.  If  thar,  be  so,  the  record  shows,  as  against  them, 
a  probability,  perhaps  a,  certainty,  that  deposition  of  complainant 
from  the  ministry  will  follow,  if  the  court  be  allowed  to  proceed  ;  or, 
at  the  least,  that  a  less  sentence,  forming  the  first  step  necessary 
to  precede  and  prepare  the  way  for  deposition,  will  be  taken. 

Bat,  independently  of  these  averments  in  the  bill,  I  think  the  re- 
spondents, as  a  court,  must  be  considered  in  law,  as  threatening  to 
inflict  upon  tiie  complainant  tlie  highest  sentence  which  they  would  be 
competent,  under  the  Canons,  to  adjudge  against,  the  oflFender,  if  found 
guilty  :  their  every  step  must  be  held  to  look  forward  to,  to  intend  and 
to  threaten  that  which  wouM  be  most  disadvantageous  to  the  accused. 
They  wrongfully  put  him  in  jeopardy  of  some  ecclesiastical  punish- 
ment—  it  may  be,  of  admonition  -^-  it  may  be,  of  degradation.  How 
can  they  claim  a  license  to  proceed  in  a  course  of  usurpation,  until 
the  point  has  been  reached  at  which  it  will  cease  to  be  in  the  power 
of  this  court  to  apply  its  preventive  remedy,  on  the  ground  that  they 
may  content  themselves  with  a  sentence  of  admonition.  The  point 
is,  they  ma//  degrade  —  not  to  speak  of  the  alleged  threat  to  do  so  on 
the  part  of  the  bishop, — and,  having  no  right  to  proceed  at  all, 
they  shall  not  put  the  accused  in  peril  even  of  an  admonition  ;  and 
if,  in  order  to  put  a  stop  to  their  illegal  proceedings,  it  is  necessary 
to  find  as  inevitable  the  worst  consequences  that  may  befall,  under 
the  Canons  of  the  church,  the  court  will  do  so. 

The  third  condition  necessary  to  sustain  the  jurisdiction  of  this 
court,  is,  that  the  consequence  of  the  infliction  upon  the  complain- 
ant, as  threatened,  of  a  sentence  of  deposition  must  be  irreparable 
damage  to  his  property,  or  estate,  or  pecuniary  interests. 


68  JUDGE  Jameson's  decision. 

And  here  I  do  not  lose  sia;ht  of  those  numerous  and  'weio'litv 
authorities  which  hold  that  the  office  or  function  of  a  Christian 
minister  is  one  of  public  importance,  and  that,  as  such,  it  will  be 
protected  bj  the  civil  courts,  and  if  its  exercise  be  impeded  or  pre- 
vented, the  injurious  interdict  or  obstacle  will  be  removed  without 
much  regard  to  the  question  of  emoluments  or  pecuniary  value. 
Mo7ithly  Law  Reporter  for  Deo.  1855,  pp.  424-425,  and  cases  cited  : 
Rex  V.  Barker,  3  Burr,  1,265  ;  St.  Luke's  Church  v.  Slack,  7  Cush. 
226.  I  prefer  to  meet  the  question  upon  the  lower  and  more  familiar 
ground  of  irremediable  pecuniary  damage.  The  bill  sets  forth  that 
the 'complainant  was  educated  from  his  youth  for  the  position  and 
function  of  a  minister  of  the  Protestant  Episcopal  Church,  and  that 
he  has  now  officiated  as  such  in  this  city  for  nine  years.  It  further 
avers,  that  he  is  not,  by  education  or  inclination,  adapted  to  follow 
any  other  vocation,  and  that  his  temporal  interests  are  involved  in 
his  being  and  remaining  a  member  of  such  ministry. 

It  is  also  alleged,  that  as  rector  of  Christ  Church,  in  this  city, 
connected  with  the  diocese  of  Illinois,  he  receives  and  is  paid  by 
said  parish  the  yearly  salary  of  $4,500,  in  addition  to  the  use  of  a 
rectory  belonging  to  said  parish  and  furnished  rent-free  to  him,  as 
such  rector.  These  latter  averments  as  to  salary  and  emoluments, 
the  answer  of  the  respondents  admits, to  be  true.  It  also  admits  the 
averment  as  to  his  nine  years'  pastorate  over  Christ  Church,  and 
that  he  was  educated,  as  alleged  in  the  bill,  but  it  does  not  admit 
that  he  is  not  adapted  to  follow  any  other  vocation,  but,  on  informa- 
tion and  belief,  denies  the  same. 

By  the  Canons  of  the  General  Convention,  an  Episcopal  clergyman 
deposed  from  the  ministry  can  officiate  as  such  in  no  parish  whatever  ; 
he  cannot  act  as  assistant  to  another  clergyman,  but  is  wholly  degraded 
from  his  sacred  office  Avherever  the  church  exists.  Tit.  I.,  Can.  11, 
sec.  1,  and  Can.  12  sec.  2  ;  Tit.  II.,  Can.  10,  sees.  1  and  2. 

From  this  legislation,  it  is  evident,  that  the  instant  a  sentence  of 
degradation  is  pronounced  by  Episcopal  authority,  upon  an  Episco- 
pal minister,  his  function  and  career  as  such  iu  the  United  States, 
and,  doubtless,  throughout  the  world,  are  ended.     He  goes  forth 


JUDGE   JAMESON  S   DECISION. 


69 


Avith  a  brand,  "like  that  of  Cain,  upon  his  forehead,  an  object  to  be 
shunned  by  all  adhering  churchmen.  His  special  education  for,  and 
adaptation  to,  the  calling  he  has  chosen  are  no  longer  of  service  to 
him  ;  his  tongue  is  silent,  so  that  he  can  neither  teach  nor  preach  as 
such  clergyman  ;  and  he  must  forego  the  salary  and  emoluments  his 
function  and  pursuit  have  secured  for  him,  and  seek  the  means  of 
livelihood  and  a  sphere  of  usefulness  elsewhere  than  among  his  own 
people.  It  has  now  become  the  duty  of  his  church  and  congregation 
to  cast  him  out  from  both  their  fellowship  and  employ,  and  the  court 
must  presume  they  will  do  that  duty.  He  has  been  convicted  by  a 
court  of  the  church,  and  sentenced  by  the  Bishop.  Behind  that  sen- 
tence they  cannot  go,  neither  can  they  look  forward  to  any  other 
tribunal  for  its  reversal,  for  from  the  spiritual  court  there  is  no 
appeal.  The  simple  question  is,  whether,  in  such  a  banishment  and 
deprivation,  there  is  or  not  a  pecuniary  damage,  and,  if  so,  whether 
or  not  it  is  such  as  the  law  pronounces  irreparable. 

That  there  is  a  pecuniary  damage,  I  cannot  entertain  a  doubt.  So 
far  as  the  loss  of  the  emoluments  or  perquisites  of  his  office,  of  the 
right  to  occupy  the  parsonage  rent-free  goes,  there  can  be  no  ques- 
tion whatever.  Monthly  Law  Reporter,  for  December,  1855,  pp. 
421-432.  He,  moreover,  loses  his  salary,  and  more  valuable  still, 
pecuniarily,  he  loses  the  position,  function  or  pursuit  for  which  he 
was  educated,  and  for  which  he  has  special  adaptation,  that  of  a  min- 
ister of  his  church.  The  bill  alleges,  that  the  complainant  is  now 
frequently  in  receipt  of  offers  of  positions  as  clergyman  of  his  church 
at  a  higher  salary  than  he  here  receives.  So  soon  as  the  sentence  of 
deposition  is  pronounced,  not  only  will  these  offers  cease  to  arrive, 
but  if  the  parishes,  including  his  own,  in  which  his  ministrations 
have  been  either  enjoyed  or  sought,  should  permit  him  to  officiate  in 
their  chapels  as  a  clergyman,  they  would  be  liable  themselves  to 
church  censure.  To  this  they  will  not  subject  themselves.  They 
will  follow  their  bishop,  and  not  the  contumacious  presbyter,  cut  off 
by  the  head  of  the  church  from  its  communion. 

That  the  office  of  a  minister  of  the  gospel  or  of  a  lawyer,  is  a  valu- 
able right  or  thing  in  iiself,  independently  of  the  question  of  fees  or 


70  JUDGE  Jameson's  decision. 

emoluments,  lias  been  the  subject  of  adjudication  in  several  cases^ 
In  the  matter  of  J.  L.  Borsey,  1  Porter's  Ala.,  p.  381  ;  Cummings 
vs.  the  State  of  Missouri,  4  Wal.  U.  S.  R.,  277  ;  Ex  parte  Gar- 
land. Id.,  333.  In  these  cases  the  court  held,  in  substance,  that  de- 
privation of  the  right  to  practice  law,  or  to  preach  the  gospel,  was  a 
punishment,  because,  not  of  the  honor  attaching  to  the  office  or  func- 
tion, but  of  the  value  of  the  pursuit.  In  the  cases  in  the  Federal 
court  the  deprivation  was  for  refusing  to  take  a  certain  oath,  which 
the  parties  aggrieved  could  not  take  by  reason  of  acts  done  by  them 
during  the  late  war,  but  before  the  act  requiring  the  oath  was  passed. 
The  supreme  court  held,  that  the  latter  act  was  unconstitutional,  as 
amounting  to  an  act  of  attainder.  See,  also.  Monthly  Law  Reporter, 
ubi  siqjra.  But  in  the  case  before  the  court  there  is  an  additional 
element,  that  of  a  deprivation  of  the  right  to  exercise  a  function  to 
which  are  attached  a  salary  and  emoluments,  a  deprivation  operating 
not  in  our  own  state  only,  but  throughout  the  world. 

It  will  be  objected,  that,  granting  the  loss,  the  loss  cannot  be  irre- 
parable, because  the  courts  of  law  can  and  will  furnish  a  complete 
remedy,  either  in  an  action  for  damages,  or  for  the  unpaid  salary,  or 
by  a  judgment  of  restoration  upon  a  mandamus,  if  the  deposition  be 
found  illegal.  If  a  complete  and  adequate  remedy  exists  at  law,  I 
admit,  the  objection  would  be  insurmountable,  and  the  complainant 
must  be  left  to  his  legal  rights.  What,  then,  would  be  his  remedies 
at  law,  were  the  deposition  now  complete  ?  If,  which  cannot  be  pre- 
sumed,—  I  must  presume  the  contrary,  — his  church  and  congrega- 
tion were  to  adhere  to  him  and  abjure  their  bishop,  the  loss  suffered 
by  him  would  be  small  —  itwouldbe  so  far  contingent  upon  the  event 
of  his  being  retained  permanently  by  his  parish,  that  it  would  be  im- 
possible to  fix  the  amount.  Perhaps  a  court  would  be  bound  to  pro- 
nounce it  nothing.  Should  the  parish,  on  the  other  hand,  adhere  to 
the  bishop,  and  turn  off  their  minister,  two  remedies  would  be  open 
to  him.  If  a  part  of  the  year,  or  other  period,  for  which  his  services 
had  been  engaged,  were  still  unexpired,  the  complainant  might  sue 
the  parish  in  assumpsit  for  the  salary  and  emoluments  for  the  residue 
of  the  unexpired  term,  and  the  court  might  give  judgment  for  the 


JUDGE  Jameson's  decision.  71 

balance  due  liim,  provided  that,  on  reviewing  the  proceedings  of  the 
ecclesiastical  court  that  deposed  him,  it  found  the  sentence  illegal, 
and  found,  also,  that  his  contract  with  the  parish  had  not  been  re- 
scinded or  forfeited ;  or  he  might  procure  a  writ  of  mandamus  to 
restore  himself  to  his  place  and  function  of  minister  of  the  parish  for 
the  remainder  of  his  term  of  office,  upon  the  same  condition,  name- 
ly, upon  the  court's  jfinding  invalid  the  proceedings  of  the  ecclesias- 
tical court.  It  is  obvious,  however,  that  a  judgment  in  his  favor,  in 
either  of  the  supposed  proceedings,  would  be  a  very  inadequate  rem- 
edy for  the  wrong  done  him.  In  neither,  could  the  court  hear  an 
appeal  from  the  judgment  of  the  spiritual  court,  or  reverse  and  make 
inoperative  the  ruinous  sentence  by  which  he  was  rendered  forever 
incapable  of  pursuing  the  only  calling  to  which  he  was  by  education 
and  inclination  adapted,  to  gain  a  livelihood  for  himself  and  family. 

In  my  judgment,  then,  a  court  of  law  could  furnish  no  adequate 
remedy  for  a  man  thus  situated,  and  there  would  be  a  failure  of  justice, 
an  injury  in  the  legal  sense  irreparable,  unless  a  qourt  of  chancery 
interposed  by  its  writ  of  injunction.  An  injury  is  said  to  be  irre- 
parable when  its  consequences  must  be  such  as  to  destroy  in  the 
estate  or  thing  injured  that  which  constitutes  its  value,  or  when  it  is 
of  such  a  character  that  although  a  court  of  law  would  admit  the 
injury,  and  that  damages  ought  to  be  allowed  for  it,  yet,  it  would  be 
impossible  for  a  jury  to  fix  the  amount.  In  the  former  case  the 
injury  is  directly,  and  in  the  latter  indirectly,  irreparable.  In  the 
case  at  bar,  I  am  of  the  opinion,  that  the  threatened  injury  would  be 
irreparable  in  both  of  these  senses.  The  estate  or  thing  of  value 
here  is  the  pursuit,  with  its  pecuniary  rewards  and  emoluments, 
present  and  prospective.  That  estate,  or  thing,  the  injury  threat- 
ened must  entirely  destroy.  On  the  other  hand,  how  could  witnesses 
estimate,  or  a  jury  fiiid  in  dollars  and  cents,  the  pecuniary  value  of 
such  an  estate,  or  thing — a  pursuit  in  life — a  career  in  one  of  the 
learned  professions  ? 

But,  it  is  said,  no  case  can  be  found  in  which  a  court  of  chancery 
has  ever  intervened  to  stop  an  ecclesiastical  trial  before  sentence 
passed.     Even  if  that  were  true,  it  would  not  conclude  this  court  of 


72  JUDGE   JAMES  n's   DECISION. 

the  right,  if  the  right  exists,  or,  if,  according  to  the  principles  of 
equity,  the  court  ought  now  to  intervene.  The  precedents  do  not 
contain  the  sum  of  all  possible  equity  cases.  As  fraud  and  wrong 
assume  new  disguises,  or  lurk  in  new  hiding  places,  or  conduct  their 
approaches  with  new  weapons,  before  appropriated,  perhaps,  to  the 
offices  of  peace  or  religion,  a  court  of  equity  will  not  despair  of 
defeating  them,  but  will  so  change  its  tactics,  so  remould,  and  re- 
temper  and  readjust  its  armor,  offensive  and  defensive,  as  to  maintain 
unimpaired  its  character  as  a  system  of  remedial  jurisprudence 
coming  in  aid  of  the  defects  of  the  law.  But  it  is  not  quite  true 
that  no  case  can  be  found  in  Avhich  an  injunction  has  been  allowed  in 
such  a  case  before  sentence.  In  the  case  of  Walker  v.  Wainwright,  16 
Barb.  486,  the  defendant,  who  was  the  ad  interim  Bishop  of  New 
York,  was  restrained  by  the  court  below  from  inflicting  sentence 
upon  the  complainant,  who  had  been  tried  by  an  ecclesiastical  court 
and  convicted  of  a^canonical  offence.  In  the  appellate  court,  Judge 
Edmonds  vindicated,  in  language  already  cited,  the  right  of.  the  civil 
tribunals  to  revise  the  proceedings  of  ecclesiastical  courts.  The  in- 
junction, it  is  true,  was  dissolved  by  the  court,  but  not  upon  the 
ground  that  it  had  no  right  to  proceed  before  sentence,  but  that  the 
complainant  had  waived  his  objections  to  the  irregularities  com- 
plained of  by  keeping  silent  when  he  should  have  raised  and  insisted 
upon  them  whilst  the  court  was  in  session.  The  same  points  were  in 
substance  sustained  by  this  court  in  the  case  of  the  Rev.  Mr.  Hagar, 
against  whom  a  presentment  was  made  to  an  ecclesiastical  court  in 
the  diocese  of  Illinois,  in  the  year  1863.  In  the  latter  case,  the  in- 
junction was  served  before  the  trial  commenced,  and,  although  the 
court  dissolved  it  at  the  hearing,  on  the  ground  of  a  waiver  by  the 
complainant  of  his  objections  to  the  jurisdiction,  yet  a  doubt  was 
not  intimated,  nor  apparently  entertained,  that  the  court  could  have 
sustained  the  injunction,  had  the  facts  as  to  a  waiver  been  different. 
It  has  been  urged  in  this^  case,  as  a  reason  why  this  injunction 
should  be  dissolved,  that  the  complainant  does  not,  in  his  bill,  allege 
his  innocence  of  the  charge  made  against  him.  He  does  not  say  that 
he  has  not  omitted  the  word  "regenerate  "  or  its  derivatives  in  the 


JUDGE  Jameson's  deci?iom.  73 

office  for  infant  baptism];  but  it  is  fair  to  remember  that  complian- 
ant's  position  is,  that  he  has  not  yet  been  brought  into  the  presence  of 
a  court  entitled  to  ask  him  whether  he  has  omitted  it  or  not.  Until 
the  time  arrives  -when  he  can  be  lawfully  interrogated  as  to  that 
point,  it  is  competent  for  him  to  refuse  to  speak,  and  to  throw  him- 
self upon  his  legal  rights.  But  it  is  not  true,  that  he  enters 
nothing  in  the  form  of  a  denial  of  the  charge  for  which  he  was  being 
tried.  The  lano-uao^e  of  the  bill  is  :  "  Your  orator  does  not  believe 
himself  to  have  been  giiilty  of  offense  and  misconduct  rendering  him 
liable  to  trials  and  in  that  regard  desires  only  an  impartial  hearing 
before  the  tribunals  of  his  church."  Now,  the  fair  construction  of 
this  averment  is  this  :  "  If  I  did  make  the  omission  charged,  which, 
for  the  present,  I  neither  admit  nor  deny,  I  believe  myself  not  to 
have  been  guilty  of  an  oifense  for  which  I  am  liable  to  trial."  Tak- 
ing this  to  be  its  meaning,  it  expresses  a  negation  of  the  charge,  so 
far  as  the  belief  of  the  complainant  goes  —  which  is,  perhaps,  all 
that  ought  to  be  expected  in  a  matter,  not  of  fact,  but  of  belief. 
The  complainant  is  a  clergyman.  Were  he  to  swear  positively  that 
he  was  not  guilty  of  an  oifense  under  the  Canons,  and  the 
doctors  of  the  law  were  to  differ  from  him  in  opinion  and  decide 
that  their  own  belief,  that  he  was  guilty  of  an  offense  was 
weightier  and  better  founded  than  his  own,  would  it  not  be  said  that 
he  had  sworn  rashly  ?  Indeed,  where  the  question  of  guilt  or  inno- 
cence is  a  legal  question,  not  one  of  fact,  no  man  can  safely,  on  oath, 
affirm  more  than  his  own  belief  as  to  his  guilt  or  innocence.  So  far 
as  that  goes,  the  complainant  has  sworn  that  his  belief  is,  that  he  is 
innocent  of  the  oifense  charged. 

One  further  remark  :  the  granting  or  the  dissolving  of  an  in- 
junction, according  to  the  settled  practice  of  courts  of  equity, 
is  not  a  matter  of  strict  right,  but  of  grace,  to  be  given  or 
withheld  at  the  discretion  of  the  court.  In  exercising  this 
discretion,  the  court  regards  two  things  :  first,  the  established  prin- 
ciples of  equity  jurisprudence  ;  and,  secondly,  the  probable  conse- 
quences of  allowing  or  refusing  its  remedial  writ.  If  there  be  a 
doubt  as  to  the  legal  propriety  of  granting  or  sustaining  an  injunc- 


74  TRIAL   OF    REV.    CHARLES   EDWARD    CHENEY. 

tion,  but  the  consequences  of  refusing  to  grant  it,  or  of  dissolving  it, 
would  probably  be  disastrous  to  the  complainant,  whilst  the  conse- 
quences to  the  respondent  of  granting  or  sustaining  it  would  be  not 
so,  or  vastly  less  so,  those  circumstances  would  generally  determine 
the  judgment  of  the  court,  and  the  writ  accordingly  be  granted  or 
continued  in  force  until  the  final  hearing.  In  my  judgment,  that  ex- 
presses precisely  the  predicament  of  the  parties  in  this  case.  The 
order  of  the  court,  therefore,  is,  that  the  motion  to  dissolve  this  in- 
junction be  overi'uled. 


Upon  the  announcement  of  the  decision  complainant's  counsel  applied  for  leave  to 
file  an 

AMENDED  AND  SUPPLEMENTAL  BILL, 

which  was  done  accordingly,  and  is  substantially  as  follows : 

That  in  the  Protestant  Episcopal  church  there  are  two  types  of  belief  or  systems, 
Evangelical  and  Sacramentarian,  low  church  and  high  church,  and  controversy  has 
arisen  ;  that  the  complainant  belongs  to  one  school  and  Bishop  Whitehoirse  to  the 
other,  and  their  views  are  diametrically  opposite  ;  that  the  Bishop  had  threatened  to 
weed  his  diocese  of  low  church  clergymen,  as  complainant  was  informed  and  believed, 
and  still  believes,  on  which  account  and  of  his  threats  to  that  effect  complainant 
believes  said  Bishop  intended  to  expel  him  from  the  church  or  diocese  by  the  initiation  of 
the  proceedings  in  question,  and  had  that  impression  before  and  during  his  interview  with 
the  Bishop,  and  was  therefore  reticent  thereat  and  refused  to  admit  anything  already 
stated — that  after  that  interview  the  Bishop  sent  the  letter  annexed  marked  "l,"and 
the  complainant  the  reply  annexed  marked  "2." 

Complainant  also  states  in  reference  to  the  securing  an  impartial  tribunal,  that  his 
counsel  wrote  and  sent  to  the  standing  committee  the  letter  annexed  marked  "3," 
to  which  a  member  of  the  committee  kindly  reported  that  the  chairman  was  out  of 
town,  but  the  Bishop  would  return  in  time  to  answer  the  letter,  which  turned  out  to 
be  the  fact. 

That  in  the  pretended  trial  of  complainant  the  Bishop  declined  to  act  as  judge,  but 
was  nevertheless  present  during  all  the  proceedings,  and  frequently  communicated  with 
the  prosecuting  proctor  by  gesture  or  otherwise,  directly  or  indirectly,  as  complainant 
charges  upon  information  and  belief. 

That  complainant  was  compelled  by  the  rapidity  with  which  the  proceedings  were 
piished,  to  interpose  the  exceptions  to  the  presentment  annexed  marked  "4."  That 
these,  as  well  as  all  other  objections  and  exceptions,  were  overruled,  without  cause 
assigned. 

That  complainant's  counsel  then  insisted  that  notice  of  time  and  place  of  trial  had 
not  been  given,  but  this  was  also  held  by  the  so  called  assessors  to  the  contrary. 

That  these  persistently  adverse  rulings  upon  points  as  complainant  believes  well 
taken,  justified  and  justify  complainant  in  the  belief  that  his  case  was  prejudged,  and 
the  determination  of  the  Bishop  to  cause  complainant  to  be  deposed,  being  carried  into 
effect. 

That  as  complainant  believes  the  original  respondents  were  selected  with  a  view  to 
complainant's  condemnation  and  deposition  ;  that  they  all  sympathize  with  the  Bishop, 
as  complainant  believes,  in  Ms  avowed  design  to  weed  the  diocese  of  low  church  clergy- 


TRIAL    OF    KEY.    CHARLES    EDWARD    CHENEY,  75 

men,  and  belong  to  the  high  church  party.  lie  also  states  that  Christ  Church  has  been 
and  is  incorporated  under  the  laws  of  Illinois. 

Reiterating  the  allegations  of  the  original  bill  of  complaint,  complainant  says  that 
the  action  of  the  Bishop  in  the  premises,  coupled  with  his  declaration  to  complainant 
of  what  he  intended  to  do  and  that  deposition  would  be  the  result  thereby,  followed  up 
by  a  designation  of  the  respondents  and  three  others  of  the  same  general  ideas  as  a  list 
to  be  selected  from ;  the  disallowance  of  challenge  for  cause  ;  the  allegation  in  the  cita- 
tion that  the  Bishop  was  proceeding  by  his  own  motion  and  not  on  the  grounds  desig- 
nated by  canon  ;  tlie  persistent  denial  of  mere  matters  of  justice  and  the  steady  and 
rapid  pressure  to  the  end,  all  manifest  a  combination  against  the  complainant  to  bring 
about  liis  conviction  and  sentence,  and  compel  complainant  so  to  charge,  and  that  such 
combination  is  illegal  and  fraudulent,  and  that  the  presenters  officially  and  by  reason  of 
being  thereto  seduced  by  the  statements  of  the  Bishop  in  his  alleged  commission,  par- 
ticipated. 

Whereupon  he  makes  Right  Rev.  Ileury  J.  Whitehouse  and  Messrs.  Sweet,  Cushman 
and  Otis  parties  defendant,  and  prays  for  process,  &c. 

The  exhibits  referred  to  are  as  follows : 

NO.    ONE. 

Chicago,  June  31,  18(39. 
liev.  Charles  Edward  Cheney,  Rector  of  Christ  Church  : 

De  VK  Sir  :  In  causing  the  coi)y  of  the  presentment  to  be  served  upon  you,  -with  the 
citation  to  be  and  appear  and  answer  thereto,  and  also  fixing  the  time  and  place  ox 
trial,  I  have  complied  strictly  with  the  canon.  But  hitherto  '^  the  oll'euce  and  miscon- 
duct" for  ^vhich  you  are  liable  to  be  tried  has  been  unreservedly  admitted  by  you,  and 
you  refer  in  your  written  answer,  after  deliberation,  entirely  to  your  previous  action 
and  decit-it)n,  as  expressed  in  the  official  interview  and  conversation  with  me,  the  week 
previ()i!>.  I  should,  therefore,  be  pleased  to  know  Avhether  you  still  CDufess  to  the  acts 
charged  in  tlie  presentment,  and  if  you  do,  I  beg  to  refer  you  to  Section  VI.,  Canon 
XX.,  fir  the  course  of  proceedings,  and  say  that  in  that  case  the  clerical  members  of  the 
Standing  Committee  would  abjudicate,  and  there  would  be  no  organization  of  the  court 
necessary.  Should  you  then  allow  the  facts  to  Ite  taken  pro  confesso ?  I  presume  that 
there  would  be  no  objection  with  the  clerical  members  of  the  Standing  Committee  to 
hear  counsel  on  both  sides  as  to  the  substance  and  form  of  it.  I  would  further  request 
that,  if  you  are  to  be  considered  as  denying  the  facts  in  issue,  and  that  the  trial  must 
formally  proceed  according  to  the  canons,  while  I  have  assigned  as  the  time  the  canon- 
ical limit  of  thirty  days  (the  31st  of  July),  an  earlier  day  of  trial  would  be  concurred  in 
by  till-  presbyters  on  your  waiver  of  the  thirty  days  reqiiired  by  Section  XIV  ;  and  on 
the  fither  liand,  if  thirty  days  is  not  sufficient  for  your  preparation  for  trial,  on  satis- 
factorj-  cause  shown  to  me  I  will  extend  the  time  named. 

Very  truly  yours,  Henry  J.  Whitehouse, 

Bishop  of  Illinois. 

P.  S.  — W.  Fitzhugh  Whitehouse,  Esq.,  Chancellor  of  the  Cathedral,  will  act  for  me 
in  receiving  papers,  &c.,  No.  6  Portland  Block,  corner  of  Washington  and  Dearborn 

sireets. 

NO.  TWO. 

Christ  Church  Rectory,  ) 
Chicago,  June  22,  18G9.  f 

Dear  Sir  :  Tour  letter  of  the  31st  Avas  duly  received,  and  at  the  same  time  copies 
of  certain  papers  purporting  to  be  a  citation  and  presentment.  I  am  surprised  at  the 
tenor  of  your  communication,  for  1  am  unaware  that  I  have  unreservedly  or  otherwise 
admitted  any  "  olfencc  and  misconduct"  for  which  I  am  lialile  to  be  tried,  or  that  I 
confessed,  and  am,  therefore,  open  tt)  the  inquiry  whether  I  "still  confess"  the  acts 
charged  iu  the  presentment.  At  the  interview  and  conversation  to  which  I  understand 
you  to  allude,  I  explicitly  informed  you  that  I  could  make  no  such  admission  or  confes- 
sion, and  I  deeply  regret  that  you  should  labor  under  the  serious  misapprehension 
iiidieated  in  the  letter  before  me.  It  is,  perhaps,  imnecessary  for  me  to  add  that  I  em- 
jihatieally  deny  any  accountability  to  sentence  or  punishment  in  the  premises,  and  can- 
not consent  to  be  placed  in  the  light  of  confessing  culpability  which  I  do  not,  in  fact  or 
law,  concede.  The  remaining  portions  of  your  letter  do  not  require  that  immediate 
answer  which  I  conceived  to  be  necessary  in  relation  to  the  subject  just  mentioned. 

Very  triily  vours,  Chas.  Edwd.  Cheney. 

To  the  Rt.  Rev.  H.  J.  Whitehouse,  D.  D.  ' 


76         TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

NO.    THfiEE. 

Chicago,  June  30,  1869. 
To  the  Standing  Committee  of  the  Diocese  of  Illinois : 

Gentlemen  :  As  isroctors  and  advocates  for  Rev.  Charles  E.  Cheney  we  addressed 
to  tlie  Bishop  of  this  diocese  a  letter,  a  cop}'  of  wluch  is  herewith  transmitted.  The 
Bishop  was  absent  the  greater  portion  of  last  week,  and,  returning  for  a  brief  space, 
left  this  city  again  on  Monday  evening,  and  before  our  communication  could  reach  him. 
Reserving  all  right  of  exception  and  objection  to  the  proceedings,  we  were,  neverthe- 
less, anxious  that,  in  the  constitution  of  the  court  charged  with  the  consideration  of  the 
matters  for  which  Mr.  Cheney  is  claimed  to  be  liable  for  trial,  such  care  should  be  used 
that  it  could  not  be  justly  said  that  the  list  furnislied  to  the  accused  was  made  up  of 
those,  or  named  anj%  who  would  come  to  the  investigation  and  trial,  if  thej'  must  be 
had,  with  a  condemning  mind.  The  list  of  presbyters" furnished  by  the  bishop  was  as 
follows :  Rev.  Dr.  Pierce,  Rev.  Dr.  Boyd,  Rev.  Dr.  Chase,  Rev.  Mr.  Benson,  Rev. 
Mr.  Benedict,  Rev.  Mr.  Abbott,  Rev.  Mr.  Corbett  and  Rev.  Mr.  Snyder,  and  we  under- 
stand the  Bishop  to  require  the  .selection  to  be  made  from  this  list  within  twelve  days 
from  June  21st  instant.  We  do  not  concede  that  the  limit  could  be  canonically  or 
legally  fixed  by  the  Bishop,  but  we  wished,  if  possible,  to  avoid  raising  such  a  question 
by  pursuing  the  course  indicated  in  our  letter  to  him.  Tliere  is  in  any  case  something 
abhorrent  to  all  principles  of  justice,  in  the  idea  of  a  court  organized  to  convict,  and 
this  seems  a  fortiori  so,  in  any  matter  coming  before  an  Ecclesiastical  court.  Wc  do  not 
state  this  for  the  purpose  of  suggesting  any  inference  or  implication  in  the  instance  in 
question,  but  simply  as  showing  the  reasonable  character  of  the  request  we  have  made. 
Neither  ourselves  nor  our  client  are  satisfied  with  the  list  furnished  him,  while,  how- 
ever, he  has  a  personal  preference  even  out  of  that  list ;  but  this  preference  he  does  not 
wish,  and  is  not  required  to  express  until  he  is  permitted  to  ascertain  that  tlie  entire 
number  presented  to  select  from  are  free  from  disqualifying  bias.  At  the  same  time, 
there  would  be  a  marked  impropriety  in  the  effort  to  directly  interrogate  the  i^ersous 
named,  save  upon  previous  communication  with  the  ecclesiastical  authority  of  the  dio- 
cese, which  we  understand  you,  pro  hac  vice,  to  be,  and  we  respectfully  solicit  your 
prompt  attention  to  the  subject.  Very  Respectfully, 

Melville  W.  Fullek. 

M.  Byron  Rich. 

NO.  four. 

(In  Ecclesiastical  proceedings  ante.) 
With  the  supplemental  bill  Avere  filed  the  aflldavits  of  Mrs.  Cheney,' that  at  the  time 
of  the  interview  with  the  Bishop  she  was  in  the  next  room,  and  heard  Mr.  Cheney  say, 
"  Bishop,  I  will  admit  nothing ;"  of  Mrs.  Stout,  that  in  the  early  part  of  June  Rev.  Mr. 
Snyder  substantially  expressed  the  opinion  that  Mr.  Cheney  was  guilty  ;  of  Mr.  Will-  • 
den,  that  on  the  ecclesiastical  trial  he  saw  Mr.  Snyder,  while  acting  as  a  member  of  the 
court,  hand  a  .slip  of  paper  to  one  of  several  persons  who  were  from  time  to  time  in 
communication  with  the  Bishop  during  the  trial ;  of  Mr.  Smale,  that  he  was  present 
during  the  trial ;  saw  the  Bishop  send  communications  in  the  direction  of  the  rear  of 
the  chapel  where  a  door  opened  into  the  room  where  the  trial  was  going  on,  and  imme- 
diately after  tliis  the  prosecuting  proctor  received  a  communication ;  saw  the  Bishop 
disappear  near  a  door  at  the  rear  of  the  cathedral  which  opened  into  the  room  into 
which  the  respondents  had  retired  for  consultation ;  saw  the  prosecuting  proctor, 
during  the  trial,  receive  frequent  communications  from  persons  who  were  in  communi- 
cation with  the  Bishop  ;  saw  one  of  the  assessors  receive  a  communication  during 
progress  of  the  trial ;  of  George  W.  Thomp.son,  that  no  motion  for  a  continuance  was 
made  before  the  respondents  by  complainant  or  himself  or  either  of  his  associates  ;  he 
simply  asked  a  construction  of  the  canon  as  to  notice  of  time  and  place  of  trial. 

ECCLESIASTICAL  COURT. 
The  Court  met,  July  29th,  pursuant  to  adjournment,  and  adjourned  to  July  30th,  and 
again  to  Aug.  5th. 

Thursday,  Aug.  .5th. 
The  Court,  after  remaining  in  private  conference  for  upwards  of  an  hour,  took  their 
seats,  (Mr.  Snyder  being  absent,)  and  Rev.  Dr.  Pierce,  of  Springfield,  read  the  reasons 


TRIAL   OF    UEV.    ClfARLES    EDWARD    CHENEY.  77 

of  the  Court  for  their  rulin,;;;s  July  21jt,  and  '22cl,  an  abstract  of  which  is  as  follows: 
(the  same  being  preceded  with  some  comments  on  Judi^e  Jameson's  decision,  and  the 
declaration  that  the  law  of  the  Church  was  administered  by  the  Court  honestly,  and  im- 
partially.) 

Fir.vt.  As  to  the  Commission— that  the  provision  of  Canon  XX  is  mandatory,  and  not 
restrictive.  The  Bishop  may  ;o)'o/)rio  wioiw  initiate  proceedini^s.  lie  mud  do  so  when 
apprised  of  an  offense,  by  either  of  the  tlirce  sources  of  information. 

The  Court's  cognizance  of  the  case  commences  with  the  pres<'ntmi'nt,  and  they  have 
nothing  to  do  with  the  commission,  or  on  what  motion  the  IJishop  proceeds. 

If  the  Canons  Avere  restrictive,  nevertheless  the  Bishop  has  the  right  to  decide  what 
constitntes  "public  rumor.  " 

As  to  the  distinction  between  oflfenses  cognizable  on  the  ground  of  public  rumor,  and 
those  which  are  not,  the  Canon  knows  of  no  such  distinction.  The  amended  Canon  is 
partly  the  law  of  the  Church. 

Second.  As  to  the  presentment  :  The  exceptions  are  two  :  first,  that  the  specifica- 
tions are  not  breaches  of  law,  as  brought  forvvard  in  tlie  charges  ;  second,  that  the  spec- 
ifications are  too  indefinite  as  to  time,  place  and  circumstances. 

As  to  the  first.  Art.  8,  of  the  Constitution  provides  for  the  setting  furth  of  a  Book 
of  Common  Prayer,  and  it  can  only  be  altered  as  provided.  The  Diocese  is  nnder 
obligation  to  see  that  the  Prayer  Book  is  used  unaltered,  and  this  it  cannot  do  if  the 
mutilating  of  any  office  therein  be  not  an  oflense. 

The  declaration  in  Art.  7,  is  part  of  that  article,  and  the  ecclesiastical  authority  is 
bound  to  see  it  adhered  to.  The  use  of  the  baptismal  office  is  comprehended  under  the 
term  vjori^hip. 

To  refuse  to  conform  is  a  violation  of  the  ordination  vows,  and  the  liability  of  a  Cler- 
gyman to  trial,  for  a  breach  of  them,  is  plainly  expressed  in  the  law  of  the  Church. 

Second,  The  requirement  of  the  law  as  to  time,  place  and  circumstances,  is  to  give 
the  accused  such  definite  information  concerning  the  accusation  as  may  enable  him  to 
bring  proof  of  his  innocence.  The  acts  cliargcd  here  are  matters  of  record  in  the 
parish  register  of  the  accused,  which  will  inform  him  Avhcn  he  has  administered  the 
sacrament  of  baptism.    And,  in  this  view,  the  presentment  is  sufliciently  defmite. 

The  form  is  substantially  the  same  as  given  by  Hoffman.  (Note  on  the  Penal  Law  of 
theProt.  Epis.  Ch.,  p.  92.) 

^.s  to  the  citation.  It  is  claimed  that  notice  of  time  and  place  of  trial,  and  the  citation 
to  appear  and  answer  are  sepai-ate  and  diflferent  things,  and  sections  4  and  8  arc  relied  on 
to  sustain  the  position.  There  is  no  inconsistency  between  them.  Section  8  provides 
for  twetitij  days  between  service  and  appearance,  over  and  above  lime  for  travel.  Section 
4,  for  a  notice  of  thirty  days  to  time  and  place  of  trial.  Sec.  8  was  intended  to  give  the 
accused  at  least  twenty  days  notice  after  service  besides  time  for  travel. 

As  to  the  Court.  No  right  of  challenge,  except  as  the  selection  of  the  accused  par- 
takes of  tiial  character,  is  given  by  the  Canon.  The  Court  being  duly  formed,  there  is 
no  place  for  the  exercise  of  any  such  right.  Eacii  member  sits  by  an  equal  right,  and 
one  has  no  power  to  expel  another.  Were  the  assessors  mere  jurors  the  right  might  ex- 
ist, but  tlien  there  must  be  some  judge  to  pass  on  the  question,  whereas  each  a.-sessor  is 
a  judge.  It  may  be  such  an  objection  miglit  be  rained  before  the  bishop,  but  not  before 
the  assessors  ;  a  challenge  in  this  latter  case  amounting  to  nothing,  as  the  assessors 
would  necessarily  have  to  pass  judgment  on  their  own  qualifications.  Hence  the  Court 
denies  the  right  of  examination  and  challenge. 

The  President,  Rev.  Dr.  Chasb,  then  read  a 

DECLARATION    AND   PKOTEST 

"  against  the  intrusion  of  Civil  Courts  in  matters  purely  spiritual  and  ecclesiastical," 
on  the  grounds,  as  abstracted,  following  : 

1.  That  Civil  Courts,  as  such,  cannot  and  ought  not  to  interfere  with  Courts  spiritual 
in  any  manner  whatever. 

2.  That  Courts  Spiritual  or  Ecclesiastical  are  governed,  not  by  Canon  only,  but  by 
usage,  which  is  their  common  law. 


78        TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY. 

That  Civil  Courts  can  exercise  no  revisory  power  over  Ecclesiastical  tribunals,  and 
when  any  riijht  of  inquiry,  in  respect  to  property  interests  arises,  after  final  decision, 
Civil  Courts  are  bound  by  the  construction  of  Spiritual  Courts. 

4,  That  the  prospective  right  of  employment-,  as  a  Clergyman,  cannot  constitute  a 
case  of  damage  or  injury.  The  minister  must  be  iu  "  regular  standing,  "  andcome  into 
court  "  with  clean  hands" 

5.  That  the  Ecclesiastical  Court  was  duly  organized,  and  there  has  been  no  oppression 
nor  negligence  in  the  premises. 

Finally,  the  members  of  the  Court  repudiate  any  intention  of  inflicting  on  the  accused 
the  worst  consequences  that  may  befall  him  ;  reiterate  their  declaration,  that  they  would 
*' be  gratified,  if  it  shall  transpire  from  the  evidence,  that  said  Complainant  is  not 
guilty  ;"  submit  tluit  they  are  not  to  bj  arraigned  and  sentenced  as  if  they  Were  a  base 
ball  club,  or  a  commission  to  run  a  railroad  ;  but  insist  that  they  derive  their  origin  from 
the  organic  law  of  a  historical  Church  ;  deny  the  charge  of  oppressively  overruling  the 
right  of  cliallenge,  and  conclude  with  a  solemn  protest  and  appeal  against  all  cliarges  of 
wrong  doing,  "  in  the  name  of  God,  this  Church,  and  our  common  humanity,  for  whom 
Christ  died ;"  and  the  declaration  that,  "  while  claiming  for  God  the  things  that  be 
His,  we  will  ever  render  unto  Cjesar  the  things  that  be  Cesar's.  " 

The  Bishop.  May  it  please  tlie  Court :  From  the  Canon  it  might  appear  that  there 
was,  to  some  extent,  a  propriety  in  the  Bisliop  acting  in  relation  to  the  postponement 
of  the  sessions  of  the  Court ;  but  at  the  same  time  it  is  obvious  that  the  Court  has  its 
own  right  of  adjournment.  Reserving,  therefore,  those  rights,  and  prudentially,  I  beg 
to  state  as  my  judgment  in  the  matter,  and  to  recommend  for  the  correlative  action  of 
tlie  Court,  that  it  be,  so  far  as  I  am  concerned,  postponed,  and,  if  they  thinlv  proper,  ad- 
journed until  the  15th  day  of  S^'ptember  next,  to  meet  then,  at  the  place  in  which  they 
have  held  their  sessions,  and  at  such  time  as  the  Court  may  think  proper  to  fix  for  their 
adjournment. 

The  Presiding  Officer.  In  accordance  with  the  authority  contained  in  the  sug- 
gestion of  the  Bishop,  the  Court  is  hereby  adjourned,  to  meet  in  this  place  ou  the  loth 
of  September,  at  two  o'clock  afternoon. 

IN  SUPERIOR   COURT  OF  CHICAGO. 
On  the  7th  day  of  August,  the 

ANSWER    OF   BISHOP   WHITEHOUSE 

to  the  amended  bill  was  filed,  wliich  protests  this  Court  has  no  jurisdiction  ;  admits 
Complainant  is  a  presbyter  of  tlie  Church,  and  Rector  of  Christ  Church  with  a  salary, 
and  that  said  Parish  has  Communicants,  Sunday  School  and  property,  as  stated,  and 
that  he  was  educated  for  the  ministry  of  said  Church,  and  has  been  a  presbyter  as  stated  ; 
but  denies  that  Complainant's  temporal  interests  are  involved  to  the  extent  of  irrepara- 
ble injury  in  his  remaining  in  such  ministry  ;  on  the  contrary,  avers  his  talents  and  edu- 
cation fit  liim  for  the  pursuit  of  other  avocations,  and  an  equally  profitable  jiursnit  of 
the  ministerial  profession.  Claims  the  commission  is  not  a  necessary  part  of  the  pro- 
ceedings ;  admits  the  issuance  of  the  commission,  and  the  finding  of  the  presentment ; 
also  admits  service  of  citation  and  says  the  object  thereof  was  to  give  notice  of  time  and 
place  of  trial,  and  furnish  list  of  presbyters  for  selection  of  assessors  ;  admits  letter  to 
Complainant  and  to  Mesn-s.  Fuller  and  Rich,  and  letter  of  latter  to  him,  and  makes 
his  letter  to  Hager  part  of  his  answer  ;  sets  forth  interview  with  Complainant ;  says  he 
convened  the  Standing  Committee  who  selected  five  assessors  from  the  list,  and  ap- 
pointed Dr.  CH.iSE  to  preside  as  Judge,  "in  case  tlie  contingency  contemplated  by  the 
Sd  section  of  Canon  , XX,  sliould  occur;"  that  the  presbyters  so  selected  became,  and 
were,  a  loyal  and  competent  court  to  try  the  accused,  and  upon  convening  it  became 
Respondent's  duty  to  lay  before  them  the  presentment. 

Respondent  admits,  as  matter  of  fact,  that  tlie  major  part  of  the  vestry  of  Christ 
Church,  had  not  given  him  iuformation  that  the  Complainant  was  guilty  of   "  offenses 


TRIAL  OF  REV.  CHARLES  EDWARD  CHENEY.         79 

or  misconduct,  "  &c.,  and  lie  admits  ttiat  lie  did  not  receive  sucii  information  from  tlirce 
presbyters,  but  denies,  that  as  Bistiop,  he  had  not  reason  to  believe  from  "public  ru- 
mor, "  that  he  ivas  guilty,  and  says  he  had  reason  to  believe  from  •'  public  rumor  ;"  but 
he  claims  that  it  was  his  right  as  Bishop,  virtute  offlcii,  on  "  credible  information  "  to 
proceed,  and  that  such  is  specilically  recognized  in  Title  2,  Canon  1,  Section  1,  which 
declares  every  minister  to  be  amenable  for  offenses  to  the  Bishop. 

Avers  that  by  Churcii  common  law,  the  Bisliop  has  an  inherent  power,  especially  in 
his  visitorial  functions,  to  inspect  the  behavior  of  his  clergy,  and  cause  them  to  be 
brouglil  to  tiial  for  any  offense,  and,  in  addition,  it  is  made,  by  Canon  XX,  his  duty  to 
proceed  when  informed,  as  therein  stated,  and  the  Canon  is  then^mandatory.  That 
construction  has  been  the  same  since  1838.  That  the  same  proceedings  transpired  in 
Hager's  case,  and  the  Convention  published  Respondent's  letter  and  answer,  Judge 
Arrington's  argument,  and  the  opinion  of  the  Court  in  tliat  case,  and  declined  to  alter  or 
amend  Canon  XX,  though  a  proposition  was  made  so  to  do,  whereby  the  Convention 
approved  the  Respimdeut's  construction  of  that  Canon. 

Admits  complainant  made  no  selection  by  himself,  in  person,  but  says  he  did  it  by  the 
Standing  Committee,  and  those  selected  appeared,  and  Rev.  Dr.  Chase  presided.  Re- 
spondent, though  present,  having  declined  to  act  as  Judge.  Admits  Complainant  ap- 
peared, and  that  proceedings  were  had. 

Denies  that  there  arc  two  types  of  belief,  or  systems,  in  the  Episcopal  Church,  as 
stated  in  the  amended  bill ;  denies  he  belongs  to  any  party,  but  is  in  favor  of  the  largest 
liberty,  but  believes  it  his  duty,  and  that  of  every  pre.'^byter,  to  regard  his  ordination 
vows,  and  administer  the  sacraments  and  services  as  prescribed. 

Denies  that  he  has  ever  threatened  to  weed  the  Diocese  of  Low  Church'  Clergymen, 
or  has  ever  intended  to  expel  Complainant,  or  entertained  any  purpose  or  desire  to 
cause  him  to  remove. 

Denies  that  he  communicated  frequently  with  Judge  Oris,  by  gesture  or  otherwise, 
for  the  purpose  of  advising  with  him,  or  directing  him  in  the  discliarge  of  his  duty,  or 
interfered  in  any  way  ;  denies  all  charges  of  effort  to  procure  conviction,  or  that  be  se- 
lected the  eight  presbyters  with  any  such  view,  but  because  they  were  able,  intelligent 
and  upright. 

Denies  that  he  has  attempted,  directly  or  indirectly,  to  affect  the  assessors,  or  any 
combination  with  the  assessors,  or  presentors,  or  either  of  them  ;  denies  "  that  there  has 
been  any  conversation  between  himself  and  either  of  said  persons,  which  was  intended, 
or  could  have  the  effect  of  producing,  a  wrongful  conviction  of  the  Defendant,  or  of  de- 
posing him  from  his  office.  " 

Says  he  did  not  communicate  the  fact  of  his  interview  with  Complainant,  but  it  was 
published,  nevertheless,  and  the  information  must  have  been  derived  from  the  Com- 
plainant. 
On  the  6th  day  of  August,  was  filed  the 

ANSWEK   OF   THE   PKESEXTORS, 

who  admit  the  averments  of  the  bill  as  to  the  salary,  parish,' &c.,  of  the  Complain- 
ant ;  says  the  law  of  the  Church  is  found  in  the  Constitution,  Canons,  and  usages  of  the 
Church  ;  aver  the  Constitution  and  Canons  of  the  General  Convention  are  contained  in 
a  book  published  in  1869,  and  brought  into  Court. 

Admit  commission  and  presentment ;  that  they  believed  said  complainant  had  omit- 
ted the  words,  "regenerate  "  and  "  regeneration,  "  at  different  times  during  two  years 
and  six  months,  and  was  liable  to  trial  therefor  ;  that  they  appeared  at  Cathedral  Chapel 
July  21st ;  that  Complainant  raised  certain  objections,  which  were  overruled,  and  right- 
fully, as  they  think  ;  deny  any  plan  to  convict  and  sentence  Complainant,  or  any  com- 
bination, direct  or  indirect,  between  them  and  the  Bishop  or  any  body  else,  to  that  end; 
deny  any  prejudice  ;  say  they  believe  Complainant  guilty,  and  wish  to  discharge  their 


80 


TRIAL    OF    REV.    CHARLES    EDWARD    CHENEY. 


duty.    Admit  a  part  of  the  Church  is  called  "High"  and  a  part  "Low"  Church,  but 
deny  all  desire  to  promote  differences,  hut  wish  for  peace  and  unity.    Deny  irreparable 
injury,  or  that  multiplicity  of  suits  will  be  presented  by  the  interference  of  this  Court, 
or  that  the  temporal  interests  of  the  Complainant  are  involved  in  the  issue. 
On  the  7th  of  August  was  also  filed  the 

FURTHER  ANSWER  OF  THE  ASSESSORS, 
n  which  they  reiterate  the  averment  of  their  former  answer ;  deny  the  existence  of  two 
types  of  belief,  generally  known  as  Evangelical  and  Sacramental ;  deny  the  design  of 
weeding  the  Diocese  of  Low  Church  Clergymen,  and  deny  any  knowledge  of  any  move- 
ment of  that  kind.  Admit  that  Dr.  Ch.\se  presided,  and  that  the  Bishop  was  present ; 
but  deny  all  communication  with  them,  and  upon  belief  with  Judge  Otis. 

Deny  all  averments  of  the  bill  inconsistent  witti  their  answers  ;  deny  that  Complain- 
ant's case  was  prejudged,  and  say  they  intended  to  give  him  a  fair  and  impartial  trial. 
Deny  solemnly  all  combination  and  conspiracy  ;  admit  that  Christ  Church  is  incorpora- 
ted, and  so  ask  to  be  dismissed. 

Also  with  said  answer  was  filed  the 

AFFIDAVIT  OF  THE  ASSESSORS, 

reiterating  the  averments  in  their  answers ;  annexing  copy  of  their  selection  by  the 
Standing  Committee  ;  deny  that  they  had  formed  or  expressed  an  opinion  as  to  the 
guilt  or  innocence  of  the  accused,  but  admit  they  had  an  opinion  that  the  omission 
charged  constituted  an  offence.  Deny  any  design  of  driving  the  accused  out  of  the 
Diocese,  or  his  parish  ;  admit  some  unfortunate  differences  have  arisen  in  the  Church, 
but  say  they  desire  to  consolidate  and  accommodate,  and  are  in  favor  of  the  largest  tol- 
eration. 

Deponent  Snydek  expressly  denies  the  formation  and  expression  of  any  opinion  as  to 
the  facts,  thougli  he  had  an  opinion  that  the  omission  constituted  an  ofl'ense  ;  did  com- 
municate withVV^.  F.  Whitehouse  that  he  had  formed  and  expressed  no  opinion,  and 
was  advised  by  him  to  say  so. 

That  tiiC  dL-cisions  were  made  upon  reasons  now  written  out,  and  hereto  annexed. — • 
{See  note.) 

Also  aflidavit  of  Mr.  Williamson,  that  he  had  charge  of  the  room  in  the  rear  of  the 
Chapel,  and  the  Bishop  did  not,  as  far  as  affiant  could  see,  have  any  communication 
with  assessois  or  presenters  ;  that  the  deliberations  of  the  Court  were  strictly  private; 
that  Complainant  was  represented  by  three  counsel,  while  the  presenters  conducted 
their  own  case ;  that  the  Court  listened  to  a  long  argument  after  the  point  had  been  de- 
cided. 

Affidavit  of  W.  F.  Whitehouse,  that  Mr.  Sxydeu  handed  him,  during  a  lengthy  ar- 
gument for  Complainant,  a  slip  01  paper  to  the  effect  that  he  never  said  Mr.  Chenet 
was  guilty,  and  affiant,  during  the  ailjournment  of  the  Court  advised  said  Snyder  to 
state  so  publicly  ;  that  no  communication  of  any  kind,  to  affiant's  knowledge,  was  had 
between  the  Bishop  and  the  assessors  or  presenters  ;  that  the  door  from  the  chapel  into 
the  Cathedral  was  kept  constantly  locked. 

On  the  loth  uf  September,  the  affidavit  of  the  CoHip?amauMvas  filed,  reiterating  the 
avermments  of  the  bills,  and  amended  bill,  again  stating  directly  and  specially,  that  he 
admitted  nothing  at  the  interview  with  tlie  Bishop  ;  that  the  letter  he  wrote  the  Bishop 
as  set  out  in  the  Bishop's  affidavit,  was  intended  to  avoid  admitting  any  omission  by 
inforvuing  the  Bishop,  that  he  adhered  to  his  conclusion  that  he  would  not  promise  not 
to  omit,  for  he  considered  to  promise  not  to  do  so  in  future  was  an  admission  that  it 
had  been  done  in  the  past ;  that  he  did  discuss  with  tlie  Bishop  his  conscientious  scruples 
simply  on  the  subject  of  the  absolute  averment  of  the  regeneration  of  the  infant,  when 
he  believed  bai/tirin  only  regenerated  when  worthily  received,  but  expressly  told  the 
Bishojj  he  would  admit  no  fact.  That  the  Bishop  threatened  deposition  as  the  inevit- 
able result  of  proceedings  at  once  to  be  instituted,  and  on  tlie  ground  that  he,  the  Bis- 
hop, would  select  as  assessors  those  who  would  convict.  And  in  this  connection  denounced 
the  "  protest.  "  That  he  is  advised  by  Cuunsal,  that  he  is  entiiled  to  stand  on  his  can- 
onical right  to  be  h-ld  to  deny  the  facts,  and  the  ordinary  presumptions  in  favor  of  an 
aecuacd,  and  he  denies  utterly  that  ihe  omission  in  question  is  a  violation  of  the  ordina- 
tion vow^,  or  uf  the  Constitution,  or  Cnnons  of  the  Church  ;  that  by  usage,  many  omis- 
sions and  changes  of  the  service  in  the  Book  of  Common  Prayer  are  peimitied,  as,  to 
omit  the  preliminary  question  in  the  Baptismal  office  ;  the  form  of  giving  away  the  bride 
in  the  marriage  service  ;  certain  portions  of  the  service  for  the  Burial  of  the  Dead ;  some 


TRIAL    OF    REV.    CHARLES    EDWARD    CHENEY.  81 

words  from  certain  appointed  lessons  of  Scripture  required  by  the  Prayer  Boole  l)e  to 
exad  ;  to  alter  the  service  for  Cimlinnalion,  (especially  in  the  Diocese  of  Illinois,  and  by 
repress  direction  of  Bishop  Wliitehousc',)  by  the  inserting  of  a  form  of  presenting  the 
candidates  for  that  rite,  not  contained  in  said  service,  or  laid  down  in  the  Book  of  Com- 
mon Prayer;  to  omit  the  word  "regenerate"  from  the  ofHee  of  Public  Baptism  of  In- 
ants,  where  occurring  after  the  administration  of  the  rite,  and  in  the  prayer  of  thanks- 
giving, &c.  &c.  That  these  omissions  and  chani^es  arc  permitted,  and  to  such  an  fextent 
as  to  create  a  usage  in  that  regard,  providing  howcvrr  tliat  the  service  is  substantial- 
ly given  and  no  change  is  made  so  as  to  teach  doctrine  contrary  to  that  of  the  Church; 
that  the  doctrine  of  the  Church  on  the  subject  of  Infant  Baptism  is  that  Baptism  is  a 
sacrament  generally  necessary  to  salvation,  but  that  the  grace  of  regeneration  does  not 
so  necessarily  accompany  the  act  of  Baptism,  that  regeneration  invariably  takes  place 
therein  ;  that  Baptism  is  an  actual  sign  of  grace  by  which  God  works  in  such  as  worthily 
recieve  it,  but  not  in  itself  without  reference  to  the  qualitications  of  the  recipient.  That 
the  Church  of  Rome  holds  that  infants  are  regenerated  ex  opere  operato  but  the  Protes- 
tant Episcopal  Church  does  not.  That  many  of  the  Episcopal  Church  hold  views  sub- 
stantially concurrent  with  those  of  Rome  ;  many  hold  the  doctrine  as  above  stated,  but 
find  no  difficulty  in  using  every  part  of  the  Baptismal  service,  while  many  holding  the 
doctrine  as  it  is,  have  scruples  about  making  the  positive  averments  of  the  infant's  Spirit- 
ual regeneration,  and  in  this  latter  case  have  been  often  permitted  without  rebuke,  to 
omit  the  allegation  ;  or  to  modify  it,  which  Bishop  Griswold  did  by  the  insertion  of  the 
words  "  as  we  humbly  trust "  after  the  averment  that  the  "  child  is  regenerate.  "  That 
the  absolute  assertion  is  in  fact  made  hypothctically,  and  the  event  is  committed  to  the 
grace  and  favor  of  God,  bj'  which  alone  can  the  work  be  wrought,  and  hence  Avhenever 
the  auditors  are  liable  to  misapprehend  the  language  it  should  be  omitted,  provided  the 
omission  does  not  change  the  service  in  substance,  as  the  alleged  omission  in  the  case  at 
bar  does  not.  That  the  standard  of  Doctrine  is  the  Thirty-nine  Articles,  and  that  upon 
them  and  the  formularies  in  connection,  the  Doctrine  is  as  before  stated,  and  faith  and  I'e- 
pentancc  are  held  necessary  in  every  case  to  actual  regeneration. 

Affidavit  further  states  that  the  Bishop  has  attempted  to  have  him  presented  before 
this,  and  for  trivial  matters  in  which  he  was  guilty  of  no  otTense;  reiterates  the  informa- 
tion as  to  the  threat  to  weed  the  Church  of  Low  Church  Clergymen,  and  gives  the  name 
of  his  inf(n-mant ;  declares  that  this  and  the  Bishop's  direct  threats  to  him,  and  the  fact 
that  the  alleged  omission  had  been  tolerated  for  many  years,  compelled  the  belief  and 
sanctions  the  charge,  that  the  proceedings  were  set  in  motion  for  the  ulterior  purpose  of 
removing  affiant,  and  not  for  the  avowed  purpose  of  discipline. 

That  affiant  communicated  nothing  to  the  public  of  the  interview  with  the  Bishop. 

Annexes  the  Bishop's  address  of  18G8,  and  insists  that  the  views  there  expressed  sus- 
tain the  allegation  that  the  Bishop  belongs  to  the  High  Church  party  and  are  diametrically 
opposed  to  atliant's :  affiant  reasserts  the  influence  necessaril.y  exerted  by  the  Bishop 
upon  presenters,  and  assessors,  and  insists  that  the  former  made  no  other  investigation 
than  the  Bishop's  letter,  called  a  commission  which  asserts  that  this  affiant  had  omitted 
the  word,  and  that  it  is  an  offense.  Again  charges  Mr.  Snyder,  with  the  formation  and 
expression  of  an  opinion,  &c.  &c. 

Together  with  this  affidavit  were  filed  that  of  Mrs.  Hoodless,  that  Mr.  Snyder,  on 
the  29th  of  June,  substantially  expressed  the  opinion  that  Mr.  Cheney  was  guilty,  and 
said  that  if  convicted  he  would  be  deposed  ;  of  Mr.  Thompson  to  the  accuracy  of  an  an- 
nexed record  of  the  Ecclesiastical  trial ;  of  Mr.  Sm  ale  to  the  threat  made  to  rid  the  Diocese 
of  Low  Church  Clergymen,  commimicated  to  affiant  by  a  person  who  heard  it ;  of  Mr. 
Sackett  to  the  Bishop's  assertion  some  years  since,  that  Mr.  Cheney  ought  to  l)e  pre- 
sented for  disrespect  to  him,  which  witness  did  not  think  was  perpetrated  ;  of  Mr.  Rich 
that  the  letter  to  the  Bishop,  contained  in  his  "Commission  "  was  written  under  his 
advice,  not  to  make,  but  to  avoid  making  any  admission,  by  promising  not  to  do,  what 
it  was  not  admitted,  had  been  done  ;  of  Mr.  Sargent,  to  seeing  Mr.  Snyder  receive  a 
communication  during  the  prosress  of  the  trial,  &c.  By  stipulation  evidence  as  to  usage 
is  yet  to  be  taken  and  used  in  the  Court  above, 

A  pro  forma  decvea  was  then  entered  in  Complainant's  favor,  and  the  case  taken  by 
Defendants  to  the  Supreme  Court  by  writ  of  error.  It  is  expected  the  argument  will 
take  place  there  in  the  course  of  a  few  weeks,  but  as  a  decision  will  not  be  reached  for 
some  months,  the  issuance  of  this  pamphlet  is  not  delayed  therefor. 


